CHAPTER GP5 – WRITING DECISIONS

The Planning Inspectorate provides advice to Inspectors to assist them in carrying out their role consistently and effectively. The Inspectors’ Handbook provides advice on procedural and policy matters drawing on relevant Court judgements and the practical experience of Inspectors.

The Planning Inspectorate continually updates the Handbook to reflect policy changes, Court decisions and practical experience. In the unlikely event that conflict arises between national policy and guidance, and a part of the Handbook, that particular part will not be given any weight.

The Planning Inspectorate is also working with Communities and Local Government on a new streamlined format for the Handbook to reflect the Killian Pretty recommendation that planning needs to be more user-friendly. 

WHAT’S NEW SINCE LAST EDITION (JULY 08)

Changes in Yellow made 23 July 2010

New section added - Applications for non-material amendments paragraphs 69 - 74 (23/07/2010)

Paragraph 42 updated to cross refer to GP8 Use of Conditions(18/6/2010)

Paragraphs 67 & 68 updated to make clear that in both transferred and SoS casework, where a legal issue has been raised the Inspector should whenever possible express a view on the matter (25/02/10)

Paragraph 32 of the Annex 'Clarifying the Plans' has been updated to expand the guidance in PINS Note 1127a about imposing a condition specifying the plans (20/01/2010).

New paragraph 9(a) has been added regarding defining the issues and when it is appropriate to go back to the parties.

Advice regarding checking the status of any saved structure plan policies has beenupdated in the Annex paragraph 11.

Advice on the weight to give emerging DPD policies in Annex paragraph 14 has beenrevised.

Paragragh 8 has been ameded to take account of the findings of PINS Note 1098 and encourages Inspectors when dealing with Green Belt cases to define the main issues in line with the advice in IH PT3: Green Belts.

Paragraphs 57–62 have been added to the Annex – Fear as a material consideration.

Paragraph 15 of the Annex has been revised, to omit the reference to guidance on

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SPG contained in old PPS12 and to give guidance on SPD.

Paragraph 33 of the Annex has been revised regarding accepting late evidence to accord with advice in HoP News Issue 26.

Paragraph 42 of the Annex has revised guidance on how to deal with Design and Access Statements.

Paragraph 14 of the Annex has revised guidance on the weight to give emerging DPDs.

Relevant Guidance

Section 38(6) of the 2004 Act  Town and Country Planning Act 1990 (s 79. s70)The Transport Act 2000

PPS11, PPS12

Circular 11/95, Circular 1/97, Circular 1/85, Circular 8/93 (Welsh Office 23/93), Circular 05/2000, Circular 02/99

Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293); SI 2000 No. 1628The Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000; SI 2000 No. 1624:The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (para 18(3); SI 2000 No. 1626The Town and Country Planning (Hearings Procedure) (England) Rules 2000 (Rule 14(3)

Case Law

Newport BC v SS for Wales and Browning Ferris Services Ltd [19981 JPL377]; Kent CC v SSE & Burmah-Total Refineries Trust Ltd (QBD 29 July 1976; Elmbridge BC v SSE and Commercial Properties Ltd - HC/90 ; Kingswood District Council v SSE and Tanner; 1987; Smith V FSS (2005) EWCA  859 [2006] JPL 386

Contents

1-5 Introduction6 Banner Heading7 Decision8-9 Main Issues10-16 Reasoning17-18 Other Matters19-24 Conditions

GENERAL POINTS

25-26 Clarification Paragraph27 Measurements28 Planning History

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29-30 Development Plan Policies31 Helpful Comments32 Precedent33 Fallback Positions34 Quality

ANNEX

1-2 Inquiry Cases3 Banner Heading4-5 Details of the Case6-10 Clarification Paragraph(s)(where appropriate)11-14 Development Plan Policies15 - 22 Supplementary Planning Documents and Guidance23 Local Transport Plans24-26 Split Decisions27 Planning Obligations28 Applications for Costs (Hearings & Inquiries Only)29 Appearances (Hearings & Inquiries Only)30-31 Lists of Documents, Plans and Photographs (Hearings & Inquiries Only)32 Listing Plans in the Decision33-36 Late Representations and New Evidence37 Re-opening Inquiries38-41 Redetermination

Other Matters or Types of Casework Which May Arise42-46 Outline Applications47 Reserved Matters48-52 The Issue of Whether Planning Permission is Required53 Temporary Permission54 Defamatory Remarks55-56 Environmental Impact Assessment57-62 Fear as a material consideration63 Retention of Inspectors' Notes64 General65-66 Policy Advice67-68 Legal Advice69-74 Applications for non-material amendments

CHECKLIST - Dos and don’ts

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1. The aim of this Chapter is to encourage you to produce written decisions which are clear and concise. Decisions should be as brief as possible, but should provide sufficient justification for the conclusions reached and the decision made. It is always important for decisions to include proper reasoning, and for all decisions to be written so as to contribute to the PINS quality target.

2. The key characteristics of a good decision are: no factual or typing errors well reasoned – makes it clear why the decision has been reached succinct – deals briefly with any procedural matters and with those matters

necessary to the decision in the reasoning. Succinct decisions can be achieved by leaving out unnecessary detail without compromise to the quality of the reasoning.

3. All transferred Section 78 decisions, regardless of whether the appeal goes by written representation, hearing or inquiry should be as brief as possible. It is recognised that more complex cases may on occasion require additional sub-headings to aid clarity. However this does not apply to most Section 78 casework, including householder and similar casework. Where a fuller treatment of the issues is necessary, the aim should still be to produce a concise decision. To reflect this the template has been revised to remove the distinction between standard and short-form decisions.

4. Decisions should be economical in the way they address procedural matters, issue definition, policy and reasoning. They should aim for brevity, though this should not be at the expense of providing a satisfactory and tactful explanation of how the decision was reached. Inevitably the losing party will be disappointed at the result and the decision should be written with the losing party in mind.

5. Accuracy, clarity and simplicity of language are attributes of a good decision. These qualities are appreciated by all those who will read the document. Simple expressions and short sentences, avoiding the use of jargon or Latin phrases, are the most effective means of communication. The aim should be to produce a logical, convincing and well-structured decision which is easy to understand and avoids any scope for misinterpretation.

BANNER HEADING

6. Always check that the details in the banner heading are accurate. The date of the application and description of development should be taken from the application form. The date of decision (if one has been made by the lpa) should be the date on which the decision was taken, as shown in the decision notice.

DECISION

7. This should always come first, followed by any conditions if the appeal is being allowed. Where there are a significant number of conditions, for example more

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than one side of A4, the appearance of the document may be improved by placing the conditions in a schedule after the reasoning. In this case the decision to grant planning permission would be “subject to the conditions in the attached schedule”.

MAIN ISSUES

8. The template includes a heading for main issues. Experience has shown that the clarity of the decision can be improved if the main issue or issues are set out at the outset, and PN 1029 directs Inspectors to identify issues under a separate heading. However, where the issues are straightforward and readily apparent from the reasoning, many Inspectors have produced good quality decisions which do not include them in a separate heading. Therefore, particularly where there is only one issue, Inspectors should use their judgement as to whether to identify issues under a separate heading. There is no requirement to do so provided the quality of the decision is not affected. Nevertheless, in the light of the findings of PN 1098 the definition of main issues in Green Belt cases in line with the wording set out in PT3 is strongly recommended as good practice.

9. The issue or issues are the nub of the case, on which the decision will turn.  Well-defined issues are the key to clear focussed reasoning.  They should be introduced in a simple, straightforward way, focussing on the practical consequences of the development, rather than any technical or semantic point.  For example, where there is an argument between the parties about whether the scheme amounts to 'over-development' or `backland development' it is better to define the issue in terms of the effect of the development on the character and appearance of the locality, etc.  Issues should not normally be framed solely on the basis of whether the proposed development is in accordance with the development plan.  If the reason for refusal refers solely to conflict with policy, the issue can be framed based on the objectives behind the policy.

9(a) When deciding which matters are at issue, it is essential that Inspectors correctly identify when it is appropriate to go back to the parties - simply because a matter has been raised does not automatically mean that an Inspector may consider it without seeking their views[1]. The fundamental principle to apply is whether all parties have had a “fair crack of the whip”. Consequently, where the parties could not have reasonably expected the Inspector to place significant weight on an issue, particularly where the issue has been raised in passing by a third party, the Inspector should give the parties an opportunity to comment further before determining the appeal.

[1] Poole v Secretary of State for Communities & Local Government and Cannock Chase District Council [2008] EWHC 676 (Admin)

REASONING10. “The reasons for a decision must be intelligible and they must be adequate. They

must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues',

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disclosing how any issue of law or fact was resolved.” House of Lords decision in South Bucks DC v Porter (No 2) [2004] UKHL 33.

11.Whilst accuracy and timeliness are fundamental to the quality and credibility of a decision, the critical content lies in the reasoning. Reasoning must be clear and cogent. Deal with each issue separately on which the decision will turn. Use references to relevant Government or Development Plan policy, and the physical characteristics of the site or the proposal to support your reasoning. These references can be brief and woven into your reasoning rather than being set out as separate statements of fact. Unsupported assertion is not enough. Use your judgment, but give clear reasons why you have exercised it in the way you have.

12.For each identified issue review the relevant facts and arguments, consider whether or not the scheme is in accordance with the development plan, and assess whether other material considerations should lead to a different conclusion from that indicated by the development plan.

13.Draw a clear conclusion in respect of each issue. It is best to conclude in the same terms as your issue reflecting the development plan policies. Where the harm caused by the scheme in respect of one issue is sufficient on its own to justify dismissing the appeal, this should be made clear i.e. “the harm identified is a sufficient reason to dismiss the appeal”. Deal with this issue first and the subsequent issues can then be dealt with more briefly. In such cases, where the scheme causes no harm in respect of subsequent issues, and where there are positive effects, you should acknowledge these but state that they do not overcome the fundamental harm that you have identified. Take care to balance any benefits against the harm identified to avoid challenges on the grounds of failure to take all matters into account. Where you find harm in respect of subsequent issues, you can say that this adds to the harm that you have identified. If conditions have been suggested you should say why imposing them would not overcome that harm.

14.Avoid rehearsing matters which are not at issue. Bear in mind that the decision is addressed to the parties to the case, who are well aware of the issues involved and arguments advanced. Therefore it is aimed at the informed reader. There is no need to recite back to the parties facts and arguments which are in the public domain, for example in the form of published policy or as submissions made on the appeal. The parties are also aware of the physical characteristics of the site and its surroundings and of the details of the proposals so you do not need to include any detailed description in your reasoning. What is important is your assessment of the issues and reasoned conclusions.

15.The inclusion of lengthy site descriptions and peripheral material is unhelpful and time consuming. It also increases the scope for errors. Any relevant description can readily be incorporated into the reasoning on the issues, and the arguments for and against likewise. It is essential that basic facts and directions are correct. Unnecessary or inaccurate description can be a source of justified complaint and should be avoided. If you are not absolutely sure of a fact ask whether it actually needs to be included?

16.If your conclusions on the issues pull in different directions include a balancing paragraph which clearly indicates the weight you have given to each issue and any other matters which you have taken into account. This is an essential part of the decision in such cases. The reasoning should be clear and logical; should

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not vacillate and should support the decision. It should not appear to head in one direction only to conclude the opposite, nor appear to draw conclusions on one matter and then re-open discussion on the same matter later.

OTHER MATTERS

17.A balance should be struck when deciding what should properly be included in decisions and what it is safe to omit. In the event of complaints or challenges where brevity is an issue Inspectors will be supported provided that the basic principles of reasoning have been adhered to. The courts have held that " …….The reasons need refer only to the main issues in the dispute, not to every material consideration.” (House of Lords decision in South Bucks DC v Porter (No 2) [2004] UKHL 33.)

18.Matters which have not been identified as main issues should be dealt with more briefly. It is not necessary to deal with the peripheral concerns of the winning party. You should deal with other matters raised by losing parties briefly but sensitively. Avoid making pronouncements about whether a matter is a material consideration; this is a matter for the courts. Instead give a clear indication of why the matter has not influenced your decision.

CONDITIONS

19.Any conditions imposed must be correctly worded having regard to the advice in Circular 11/95. If the appeal is being allowed conditions suggested by the parties (including consultees such as the Highway Authority or the Environment Agency) should be considered and brief reasons given for imposing or not imposing them. Never accept without question the conditions suggested by the LPA. Even if you agree they are needed you must check them against the tests in the Circular.

20.If the wording of a condition needs to be altered significantly you should explain why. It might be to ensure greater precision. In most simple cases there will only be one or two conditions to impose. There is no need to give reasons for the standard time limit conditions. If there are many conditions a separate section dealing with conditions may be needed, though the reasoning may well be short. See also IH Chapter6 for advice on appeals against conditions and GP8 for advice on planning conditions.

21.A high proportion of justified complaints relate to conditions, in particular that conditions were omitted that the Inspector proposed to include, that no reasons were given or that conditions to overcome perceived harm were ignored by the Inspector. The conditions are a critical part of the decision and great care must be taken when drafting them.

PLANS

22.The plans to be considered as part of the appeal should be confirmed at ASVs and be agreed at the start of a hearing or inquiry. Where additional or substitute plans (to those considered by the lpa) have been accepted these should be noted and identified by number, generally in a clarification paragraph. In large and/or Secretary of State cases the parties should be required to provide an agreed list of plans at or before the hearing or inquiry.

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23.Where an outline application has been submitted, but is accompanied by detailed plans which do not have the notation that they are “illustrative”, you should determine those matters which are stated on the form to be for approval at outline stage, unless it is otherwise indicated in correspondence and has been dealt with accordingly by the LPA in their decision.

GENERAL POINTS

Clarification paragraph

24.The need for clarification of the proposal or the plans should be infrequent. However if there is any doubt or dispute about the nature of the development proposed, the address of the site or which plans are relevant to the proposal, this should be explained in the reasons section and the basis on which you have dealt with the appeal clearly set out.

25. The description of an application is sometimes amended during determination or in the course of an appeal. In such circumstances you should clarify the nature of the application in a clarification/procedural paragraph. But note that if you then allow the appeal the decision should not refer simply to the application but to the amended application as detailed in the clarification/procedural paragraph of the decision.

Measurements

26. Reliance upon precise measurements should be avoided if at all possible. Where you consider that you will need to scale off measurements from the submitted plans, check with the parties at ASVs, Hearings and Inquiries that the plans bear true scales. In some cases, as with USVs, it may be necessary to write to the parties to get this confirmation. Alternatively, or as well as, use only those measurements which have been agreed by the parties or are not challenged. Specific measurements given on a plan may be used. When submitting plans electronically, appellants will be required to indicate the paper size that the plan should be printed on, to help ensure that they are printed to the correct scale. Where the size is not indicated, a note will be placed on file warning the Inspector that the plan may not be to scale.

Planning History (where necessary)

27.Extant planning permissions, refusals and any other material historical background should, where relevant be dealt with in the decision. In most cases there is no need for a separate section as the relevant facts can be incorporated into the reasoning. However, a separate section may be useful if the background is complicated and needs to be dealt with first. This would be especially true if there was an extant permission on the site for the same or similar proposals that created a fall-back position or if there were a previous appeal decision for the same or similar development.

Development Plan Policies

28.Weave references to development plan policies into the reasoning of the decision. Be selective about which polices are relevant. The development plan policy numbers/s and a brief indication of what the policy relates to will usually

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be enough. A clear conclusion should be reached as to whether the proposed development complies or not with those relevant policies. See Annex paragraphs 13 and 14 of this chapter about attaching weight to policies in adopted and emerging plans.

29.Where the policy background is evolving rapidly, and for some more complex casework, you may need to undertake a fuller appraisal of the policy background. You should still be selective about which policies you take into account, and refer only to those most relevant to the case. In many cases lpas and appellants will cite a number of policies that are not relevant and which do not need to be mentioned. Advice on how to approach policy matters when a fuller analysis is required is set out in the Annex to this chapter. If you consider that policies cited by the parties are not relevant, then you should say so, giving your reasons. If the development plan is introduced at an early stage it is important to return to it in your reasoning, and conclude whether the scheme is in accordance with it. You must in every decision conclude how the development stands in relation to the development plan.

Helpful comments

30.Helpful comments suggesting that a scheme which is to be dismissed would be made acceptable if certain amendments were made must be avoided. Such comments are beyond your remit in determining the appeal and might fetter the judgment of future decision makers, including another Inspector. It is for the lpa to determine any revised application. It should however be clear from your reasoning why what is before you is not acceptable and whether this leaves scope for a different approach to be taken in the future or not.

Consistency

31.Previous appeal decisions must be dealt with properly if they are drawn to your attention. If they are readily distinguishable you should explain briefly why. Don’t rely on trite phrases such as “every case on its merits” to avoid the necessity of getting to grips with points made about consistency of decision making. This does not mean that previous appeal decisions should be followed slavishly. However, any disagreement with the judgment of a previous Inspector should be dealt with explicitly, the reasons for the disagreement such as a change in policy or circumstances explained and consideration given to the importance of consistency, bearing in mind that all Inspectors stand in the shoes of the Secretary of State and are not independent but ‘impartial’ decision-makers. Where a scheme has been amended following a previous appeal decision it will be particularly important to make a clear differentiation between the two if the description of development remains unchanged and when it is intended to allow the second appeal.

Precedent

32.Fear of establishing a precedent is not in itself a reason to withhold planning permission. If you are allowing an appeal and precedent has been raised as an issue, be careful to distinguish the particular characteristics of the proposal you are dealing with. If the appeal is being allowed as an exception to planning policy you must say so explicitly and the exceptional circumstances should show why the approval would not establish a precedent.

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Fallback positions

33.It should be clear from the reasoning that any fallback position such as the implementation of an extant planning permission, the resumption of previous activities or the exercise of GPDO rights has been taken into account. Even if there is such a possibility it does not prevent you from dismissing an appeal for a scheme which is patently unacceptable in planning terms. It is for you to weigh the degree of probability of the fall back position being implemented and the harm arising from it against the harm arising from the proposal.

Quality34.Check your decisions thoroughly before they are submitted for issue. To satisfy

the Advisory Panel on Standards and thus the Secretary of State 99% of PINS casework must be free of justified complaint or successful High Court challenge. The most common causes are typographical and minor factual errors such as misspelt names and addresses; wrong or transposed reference and other numbers; wrong dates, compass points, etc. Factual errors are often caused by an unreliable assumption that minor details are likely to be correct. These can largely be avoided by careful checking against the information on the file. Drafting errors are more easily picked up if the decision is written one day and checked the next. There are a number of techniques for effective proof reading, and you should use whatever technique suits you best. For further advice on proof-reading see http://pinsnet.pins.local/information/training_and_guidance/training/proof_reading/index.htm

See also QAU’s presentation on complaints:

http://pinsnet.pins.local/information/policy_and_casework/quality_assurance/complaints/QAU%20Complaints%20presentation.ppt

To further help maintain quality standards, and in response to the recommendation in APOS’s 13th Annual Report, PINS will be resuming the random monitoring of Inspectors’ decisions.

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GP5 - WRITING DECISIONS

ANNEX

The advice in Chapter GP5 applies to all decisions. This Annex gives more detailed advice on using the template, and retains advice formerly included within GP5 on dealing with particular circumstances which may be encountered from time to time.

Inquiry Cases

1.It is accepted that decisions in some Inquiry cases may need to be reported more fully. Use of the short form is intended to ensure a consistency of ‘look and feel’ and not about fettering the discretion of Inspectors to make properly reasoned decisions. Where additional headings are needed to aid clarity then it is appropriate to use them, especially in complex cases. Furthermore, where annexes assist in dealing with lengthy lists of conditions there is no reason why that approach should not be adopted, or the conditions can be set out at the end of the Decision. However, the expectation remains that we will have one style of decision for s78 appeals based on the short form template.

2.Similar principles apply to decision writing following an Inquiry as to any other S78 case. Reference to policy, details of the site description or of the proposal should normally be woven into the reasoning where relevant rather than being set out at length in a separate section of the decision. Furthermore it is not necessary to set out in detail the cases for the parties as presented at the Inquiry. It is necessary for the decision to address the arguments put forward by the parties to the Inquiry, but a lengthy recitation of cases should be avoided1. In dealing with the arguments, you can demonstrate that you have taken account of the issues that were put at the inquiry. All the main arguments must therefore be mentioned. It is important to record in the decision document matters where the inquiry revealed differences from the representations produced beforehand. If stress has been laid by one of the main parties on a factor to which the Inspector attaches little weight, this factor should nevertheless be dealt with and it should be explained why little weight is attached to it. Views of interested persons which deal with matters of little weight can often be disposed of without detailed mention, but if there is a common theme shared by several interested persons at the inquiry or in the written representations it is advisable to deal with it in the decision document.  

The Banner Heading

3.Make sure you are using the correct template i.e. Appeal Decision or Costs Decision. The event type (site visit, hearing or inquiry) and the date should be recorded below the main heading. If it is a multi-day event, rather than `held on’ you should say `opened on’, and go on to accurately record the dates and numbers of days for the hearing or inquiry in the bullet points. The template

1 Earlier advice has indicated that the cases for the parties should be recorded in a decision following an Inquiry in case of a HCC. Experience has demonstrated that where there is a challenge which relates to the details of the case put by one of the parties at an Inquiry, submissions can be made by affidavit. The Inspector’s decision is not relied upon.

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includes appropriate prompts for this. Your name and qualifications are also shown in the banner header, as is your status (i.e. an Inspector appointed by …. – or whatever other status you hold for that particular event). Inspectors who are magistrates may now include the suffix JP in their decisions or reports.

The Details of the Case

4.The details set out at the head of the document must be accurate and must be carefully checked against the file details. At the top, you should record, in bold type, the case reference as shown on the file cover. Immediately below this set out the site address. The address of the appeal site should, provided it is accurate, be recorded as it appears on the planning application including the postal town and county and, when given, the postcode. Below these are the particulars of the case set out as bullet points. These are, for the majority of cases:

a. the Act under which the appeal is made and what type of appeal it is. The template will usually pick out the appropriate Act and section(s) according to the type of appeal you have identified;

b. the name of the appellant and the LPA. The right of appeal is vested in the applicant so the name of the appellant should be taken from the planning application form (but when there are a number of applicants, they do not all have to be party to the appeal). Where the applicant has died and the executor is seeking probate, then the appeal should proceed in the name of the executor. Provided you have entered the lpa code correctly as part of the file reference, the name of the lpa will be inserted automatically

c. the application reference No., the date of the application and the date of the lpa’s decision notice;

d. a description of the proposed development;

5.Inspectors who do not use the `active’ version of the Decision and Report Template may be supplied with a `passive’ version of the main document types plus continuation sheets for use on their own word processing packages.  

Clarification Paragraph(s)(where appropriate)

6.Clarification paragraphs should not be necessary in the majority of cases. If there is a need, it should be inserted after the decision and before the Main Issues.

7.Clarification will be necessary where the original description of development is unclear, fails properly to reflect what is being sought (e.g. in s73A cases for retrospective permission where, instead of simply referring to the original act of development, the terms “retention” or “continuation” have mistakenly been used), has been superseded by subsequent amendments to the scheme, or where the nature of the scheme or application is in dispute.  

8.Other matters that should be recorded include:

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that the appeal relates to an outline application and which matters are reserved:

which plans are extant and which have been superseded, and so on;

failure of a party to attend a site visit and what action was taken;

if a party asserts that planning permission is not required for the development, you indicate that that is a matter that is not before you ;

errors to be corrected in the light of facts revealed at a site visit or from the submissions;

if the appeal is against non-determination, set out an indication of the grounds on which the lpa would have refused or allowed the application;

where the lpa have issued a split decision; details of how the appeal is being dealt with.

9.Often, clarification can be dealt with in one paragraph, but in difficult cases or where there is significant dispute over fundamental points, much more reasoned explanation may be needed. Before moving on to deal with the main issues, there should not be any loose ends and the appellant, lpa and any other readers should not be left in any doubt about the Inspector's approach to the nature of the application/appeal.  

10.Where it has been necessary to clarify the description of the application (perhaps to formally amend) it is this clarified/amended description that must be used in the Formal Decision if the appeal is allowed.

Development Plan Policies

11.In most cases reference to development plan policies should be incorporated into the reasoning in the decision. A new system of development plans was introduced by the 2004 Planning and Compulsory Purchase Act, and Regional Spatial Strategies became part of the statutory development plan. Old style development plans include adopted unitary development plans, approved or adopted structure plans, adopted local plans and any adopted minerals local plan and waste local plan. Advice on dealing with the transition from old style development plans to the new Local Development Frameworks is set out in PINS Notes 1037 and 1038 and 1125. Unless it is clear from the evidence, the status of any saved structure plan policies which seem relevant to the decision should be checked by reference to the guidance in chapter PT23 as they may have been replaced by policies in an approved Regional Spatial Strategy.

12.Section 38(6) of the 2004 Act requires that an appeal is determined in accordance with the development plan unless material considerations indicate otherwise. However, as long as it is clear through the Inspector’s reasoning that the provisions of S38(6) have been applied properly, there is no need to state this explicitly in the decision document. The order of precedence where there is a conflict between plans is set out at S38(5) of the 2004 Act.

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13.Weight should not be ascribed to policies in an adopted or approved plan, because it is given statutory force by s38(6). The age of a plan is not material, thus, if the development plan policy is elderly, it is not appropriate to say 'I accord the policy little weight' or if it is recently adopted, 'I accord the policy great weight'. What should be considered is whether other material considerations such as Government Policy in PPGs or PPSs and Circulars, or emerging development plan policies may justify deciding the appeal other than in accordance with the adopted development plan policies. An example might be where recent events or policy developments i.e. PPS 3 and PPG 13 have rendered the development plan policy out-of-date.   

14. As set out in ‘The Planning System – General Principles’ (2004), the weight to be attached to emerging DPD policies will depend upon the stage of preparation or review, increasing as successive stages are reached, particularly in the later stages of preparation (namely: publication, submission and examination). The weight attached to emerging policies will be largely dependent upon the circumstances surrounding the plan and the application in question. The published DPD will attract some weight since the LPA is publishing the DPD it intends to submit for examination and which it considers to be sound. However even after publication/submission the weight the policy should carry is likely to be limited because of the potential for a finding of unsoundness. In determining the weight to be given to an emerging DPD policy in an appeal, an Inspector would also have to consider the extent to which the emerging policy reflects any policy in an approved RSS, or up to date Government policy. Clearly where an emerging DPD policy accords with national policy, or carries forward the objectives of an approved RSS that is consistent with national policy, the emerging DPD policy will be an important material consideration. Once the DPD has been examined and found sound by the Inspector and the LPA are in receipt of the binding report, then considerable weight can be given to the policy, even if the DPD has not yet been adopted.

14a.Policies in an emerging plan which the LPA subsequently decides not to progress will still be a material consideration either in their own right as a planning consideration or because they reflect Government policy guidance. However, as with emerging plans which are due to progress to adoption the weight given to policies in an abandoned plan will depend on the stage the plan reached, as well as the reasons for abandonment when the LPA decided not to progress it and whether it is now felt to be out of date.

Supplementary Planning Documents and Guidance

15.Commencement of the new development plan system on 28 September 2004 provided for the preparation of supplementary planning documents (SPD) rather than supplementary planning guidance (SPG). Paragraphs 2.42-2.44, 4.39-4.44 and 5.24 of old PPS12 (2004) (link) provided further advice, although these have now been superseded by new PPS12 (2008)(link) and the Plan-Making Manual (link). SPD are LDDs (local development documents) but are not DPDs (development plan documents) and so are not subject to independent examination. Paragraph 6.1 of new PPS12 states that a planning authority may prepare Supplementary Planning Documents to provide greater detail on the policies in its DPDs. SPDs should not be prepared with the aim of avoiding the need for the examination of policy which should be examined. Although SPDs will not form part of the development plan

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they will form part of the planning framework for the area. SPDs should carry more weight when compared to SPG because of their more thorough preparation. 

16.The requirements for SPD are set out in regulations 13 and 16-23 of the Town and Country Planning (Local Development) (England) Regulations 2004 (as amended) (link). Under the Regulations, the policies in an SPD must be in conformity with–

(a) the policies in the core strategy, (b) the policies in any other DPD, or (c) if neither paragraph (a) nor (b) applies, an old policy.

17.Inspectors should be particularly alert to the conformity requirement as some LPAs fail to link SPD to a development plan policy.

18.As a matter of good practice, SPD should be clearly cross-referenced to the relevant development plan policy which it supplements (or, before a relevant development plan document has been adopted, a saved policy).  On the same basis, it should be reviewed regularly alongside reviews of the development plan policies to which it relates.

19.SPD must be consulted upon in accordance with regulations 16-18 of the Town and Country Planning (Local Development) (England) Regulations 2004 (as amended) before adoption under regulation 19.

20.Inspectors should assume that where the LPA states that an SPD has been adopted, that the document has met these requirements, unless there is evidence to the contrary.

21.In the meantime, SPG may still be material to a decision. Since commencement of the new development plan system, existing SPG has not automatically lost its status but continues as non-statutory guidance whilst the relevant saved policies are in place. Therefore, properly prepared SPG which is consistent with the development plan and national guidance should be given appropriate weight.

22.Provided you have demonstrated through your reasoning that you have had appropriate regard to any relevant SPD/SPG, it is not necessary to spell out the degree of weight you have accorded to it.

Local Transport Plans

23.The Transport Act 2000 makes the preparation of Local Transport Plans (LTPs) a statutory requirement. The Act also places an obligation to keep LTPs up to date and prepare new ones should circumstances change significantly. The purpose of LTPs is to focus local authority policies on the development of an integrated, multi-modal transport strategy with emphasis placed on public involvement and the development of partnerships. Local and regional strategies will be developed to improve public transport, safety, encourage cycling and walking and improve the mobility of disabled people. LTPs are prepared in consultation with the public and will be an important material consideration.

Split decisions

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24.Inspectors have the power to split a decision, allowing one part of a scheme and dismissing the rest (s79(1) of the 1990 Act). The option can be used where the two parts of a scheme are clearly severable both physically and functionally. For example in a scheme of house extensions, an unsatisfactory rear conservatory could be dismissed but the garage could be allowed. The component to be allowed must be capable of being built and then used sensibly without the component to be disallowed. Provided the Inspector is satisfied on these points there can be no injustice in allowing one component and not the other, and Inspectors may proceed to do so without reference back to the parties. The scope of the split decision and the reasons for it must, of course, be clearly set out in the decision.

25.In appeals where the LPA has issued a split decision the whole proposal is before the Inspector and he or she is therefore not restricted to dealing only with the elements of concern to the appellant. While it would be possible to come to a different conclusion from the LPA, the power to reject the whole proposal, including the element permitted by the LPA, must be exercised with caution. In the event that the element that the LPA granted planning permission for be considered unacceptable, or if the proposal as a whole is considered unacceptable, the comments of the parties must be sought before a decision is issued. This will give the appellant the opportunity to withdraw the appeal and retain the permission as granted by the LPA. The Inspector should point out that if the permission for that part of the development allowed by the LPA has already been implemented and the appeal is not withdrawn, the appellant risks losing the permission that has been granted and that, in such circumstances, the development will be unlawful and it will be for the LPA to decide whether it is appropriate to take enforcement action. If the appeal is not withdrawn the Inspector may either dismiss the appeal if the whole proposal is considered unacceptable or issue a split decision if appropriate. Where the whole proposal is unacceptable the decision will be that the appeal is dismissed and planning permission is refused. Where the Inspector agrees with the LPA's split decision this should be mirrored in the decision. Where the whole scheme is acceptable the Inspector should allow the appeal and grant permission for the whole development.

26.You should make clear in your clarification paragraph how you will be dealing with the appeal by saying something along the following lines:

“I note that the LPA has granted planning permission for [description of proposed development from decision notice] but refused planning permission for [description of proposed development from decision notice] and the appellant [claims that the LPA has no power to issue such a decision] [has only appealed against this refusal]. However, [it is a matter of law that a “determining authority” may make a split decision where elements of the proposed development are separate and divisible, but] the whole of the proposed development as described in the application is before me for consideration.”

Planning Obligations

27.Advice on planning obligations is given in Chapter GP7. Where a completed s106 obligation is supplied, Inspectors will need to consider whether it is needed to overcome any valid planning objections. It will need to be checked against the policy and legal tests set out in Circular 05/2005. The obligation will have to be

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dealt with in the decision document whether the appeal is to be allowed or dismissed. If the appeal is to be dismissed, the Inspector should explain why it does not overcome the arguments against the proposal. Where the parties have referred to a s106  obligation and the Inspector considers this would render the development acceptable but no completed undertaking or agreement is available at the time of the decision, Inspectors should, except in the limited circumstances described in paragraph 22 of Chapter GP7, dismiss the appeal. However, the decision should make it clear that the s106 obligation would have made the proposal acceptable but since it was not before the Inspector there is no alternative but to dismiss the appeal.

Applications for Costs (Hearings & Inquiries only)

28.Policy advice on applications for costs is contained in Circular 8/93 (Welsh Office 23/93). For further advice on Costs decisions, see chapter CT1

Appearances (Hearings & Inquiries only)

29. Inspectors should publish with their decisions (and reports) a list of appearances. This should include the names and qualifications (but not addresses) of those appearing and who they represent. Unless the Inspector decides otherwise, the listing of appearances for an inquiry usually starts with the local planning authority followed by the appellant or applicant (at a hearing this order is usually reversed), statutory parties, the parish or town council appearing on its own (as opposed to being called by one of the principal parties) and other interested persons, in that order. Below the name of each party should be listed the names of advocates and witnesses (if any). Opposite the names should appear the qualifications or occupations of advocates and witnesses. Barristers, except QCs, should be listed as 'of Counsel' (where they are practising members of the Bar) followed by the names and addresses of their instructing solicitors or agent. The capacity in which non-professional witnesses appear, e.g. local resident, should be recorded. It is useful to get the main parties to provide this list for you on disc.

List of Documents, Plans and Photographs (Hearings and Inquiries only)

30.It is not necessary to list every document submitted during the life of a transferred case. The parties should already be aware of what they and the other parties have submitted in the way of evidence before the hearing or inquiry itself and listing them serves little useful purpose. Thus, only new documents submitted to an Inspector during or after a hearing or inquiry need to be listed at the end of the decision. Inspectors may of course choose to list other documents relevant to the decision if necessary.

31.Photographs submitted during the inquiry or hearing, and other photographs relevant to the decision but not forming part of a Document, should be listed. Often photographs are submitted in sets or portfolios and these can be listed as sets rather than individual photographs unless there is good reason to do otherwise - such as for the purpose of cross referencing

Clarifying the Plans

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32.If the appeal is based on an amended plan, or where supplementary plans have been introduced and accepted, or there is any doubt about the plans on which the appeal is based, this should be dealt with in a clarification paragraph(s) (after going back to the parties where necessary). Inspectors should attach a condition requiring that the development is carried out in accordance with the approved plans to most planning permissions granted. See GP8 paragraph 51 for further advice.

Late Representations and New Evidence

33.Except where extraordinary circumstances apply, evidence received outside the timetable will have been returned to the party who submitted it, and hence will not be available to Inspectors in advance of the site visit, hearing or inquiry.  Circular 05/2000 paragraph 14 says “Paragraph 3 made clear that representations received after the due dates will normally be disregarded. It is the parties' responsibility to ensure that the Secretary of State receives representations within the deadlines. Although each case will be considered on its particular facts, late representations will only be considered in extraordinary circumstances. Examples of extraordinary circumstances include where representations are delayed because of a postal strike, or by the ill-health of an appellant, or to give a third party more time where the local planning authority is late in notifying them of the appeal, or where there has been a last minute change in circumstances which the Inspector ought to know about.” 

“Extraordinary circumstances” (which mean that we will accept late representations) will always include notification that the status of documents related to planning policy has changed and further submissions consequent upon those changes.  Such documents include:-

Old style Development Plans Regional Planning Guidance (RPG) Regional Spatial Strategy (RSS) Local Development Frameworks Local Development documents (in England) (Development Plan Documents and

Statements of Community Involvement) Local Development Plans (in Wales) and Any supplementary planning documents

At a hearing or inquiry Inspectors have the discretion as to whether to accept evidence which is late. In the interests of natural justice it may be necessary that such documents are accepted. This will mean an adjournment will be necessary to allow the Inspector to read these documents but the other parties have the option of making a costs application. Inspectors are encouraged not to accept late documents they are offered at a hearing or inquiry which in their view are not necessary for their decision.

34.In written representation cases, Inspectors should wherever possible make their decisions using the information on the file. Rule 10(1) of the Written Representations Regulations gives the necessary powers to do this. Where, however, further information is essential, whether as a result of the site visit or for

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any other reason, Inspectors should request such information by means of a letter sent to the party concerned via their operational support unit. The request should be set out in an email and sent with a covering note to the support unit who will merge the request with a letter to be sent from the office. The support unit will give the other party the chance to comment on the ensuing reply. The only exception to this is where that information ought to have been obtained by the procedure team as part of the collation of the appeal documents – in which case it is their responsibility. Problems can occur when an Inspector asks the parties at the site visit or the venue to send information "to the office". Where this occurs the Inspector must inform the procedure officer of the request immediately so that they will be prepared for its receipt and do not turn it away as a late document. As an extra safeguard, Inspectors should ask the party concerned to label the material clearly "requested by the appointed Inspector". This too will help alert recipients in the office not to return the material as being out of time. 

Under no circumstances in a written representation case should any evidence be accepted at the site visit. Parties offering documents at this stage should be reminded of Regulation 7(8), and advised to contact the Case Officer to discuss the matter without giving any indication as to whether they will be taken into account. Advice on dealing with late evidence tendered at a hearing or inquiry (or after one has closed, and on re-opening) is given in Chapters GP9- Conduct of Hearings [1M] and GP4 - Conduct of Inquiries respectively.

35.In transferred inquiry and hearing cases, relevant new evidence or matters of fact not raised at the inquiry are dealt with in rule 18(3) of the Inquiries Procedure Rules governing transferred appeals (and Rule 14(3) of the Hearings Procedure Rules). If the Inspector wants to take post-inquiry letters into account he/she will have to decide whether they fall within the classes of evidence and fact described in rule 18(3) / 14(3) - as appropriate. These rules only cover evidence and facts which were not raised at the inquiry and which the Inspector considers to be material to the decision. If the Inspector proposes to take into account any such evidence or new issue of fact, he/she should write a minute to the support group setting out its substance and this will be notified to the parties for their comments.  

36.While Rules 18(3) and 14(3) set out an Inspector's statutory obligations, he/she must bear in mind the need, whether or not the situation comes properly within these rules, to ensure complete fairness and openness towards all parties to the proceedings. Inspectors must not base their decisions on, or allow them to be influenced in any way by, information or issues which have not been fully disclosed to the parties and on which they have not had an opportunity to comment.

Re-opening Inquiries

37.Rule 18(4) of the Inspectors Inquiries Procedure Rules and rule 14(4) of the Hearings Procedures Rules also empower Inspectors to re-open an inquiry on their own initiative. Inquiries should only be re-opened in exceptional circumstances. If the matters raised are entirely new (e.g. new Government guidance etc.,) the points usually are dealt with by written representations. If an Inspector considers that an inquiry should be re-opened, this should only be done after the Inspector has consulted his/her Inspector Manager. Inspectors are required by the same rules to re-open the inquiry if asked to do so by one of the main parties to the

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appeal who appeared at the original inquiry or hearing, in any case where they propose to take into consideration any new evidence or any new issue of fact.

Redetermination

38.The Decision and Report Template includes standard bullet point text in the appeal details which should be included for all redetermination cases. For those who do not have office word processors the text should be included as the last bullet point in the appeal details. The text should read: This decision supersedes that issued on []. That decision on the appeal was quashed by order of the High Court.

39.After a decision has been quashed, it does not automatically follow that the whole case will have to be rerun and a different Inspector appointed. Both the Hearing and Inquiry Procedures Rules explicitly provide that, following the quashing of a decision, the Secretary of State will write to those who appeared at the hearing inquiry stating the matters about which further representations are invited. After considering those representations, the Secretary of State is entitled to decide whether it is necessary to re-open the hearing/inquiry (whether by the same or a different Inspector). In some cases it may be possible to appoint the same Inspector and limit the redetermination process to an exchange of written representations on the point on which the first decision was quashed. In such cases while the new decision must give fresh and very careful attention to issue on which the first decision was found to be flawed, the Inspector may adopt those parts of the first decision that were untainted by the decision to quash it, provided no material change in circumstances has been brought to their attention since the first appeal decision was issued.

40.In those cases where a new Inspector is appointed to redetermine the appeal the whole case will normally need to be considered afresh. Therefore the new Inspector must not only give particular attention to the grounds on which the original decision was quashed but must also restate all the planning issues and give them renewed consideration. If an Inspector is minded to make changes which go beyond those called for as a result of the Court's judgement, to do so without compelling new material may render the re-determined decision vulnerable to challenge unless the reasoning is especially clear and cogent.

41.Explicit references to the original decision are not normally appropriate except in the context of making clear that the redetermined decision supersedes the quashed one. However, if the parties seek to rely on conclusions expressed by the first Inspector that have not been tainted by the reasons for the quashing, of the decision, those conclusions should be treated as material considerations in the redetermination. Equally, if an Inspector is proposing to come to a different conclusion on these aspects of the case it will be appropriate for the decision to refer to the previous Inspector's views, in addition to giving, clear reasons for coming to a contrary opinion.

All redetermined cases are monitored and must be submitted to the Operational Support Team, 3/06, Kite Wing, TQH.

Other Matters or Types of Casework which May Arise

Outline Applications

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42.With some exceptions, (e.g. development within the curtilage of a dwellinghouse not in a designated area, changes of use, and mining and engineering operations) applications for both outline and full planning permissions submitted in England on or after 10 August 2006 should be accompanied by a Design and Access Statement (DAS).  In order for relevant applications to be treated as valid they must, amongst other things, meet the requirements of Article 4C of the GDPO regarding information that should be contained in a DAS. The amount and quality of the information needed will vary from scheme to scheme. Disputes about validity (e.g. where an LPA refuses to accept an application because a DAS is inadequate or missing) on applications that go to appeal will be decided by Planning Casework. Inspectors should not deal with questions of validity in respect of the DAS once Planning Casework has decided the matter. However, the acceptance of an appeal as valid does not preclude the parties from commenting on the planning merits of the proposed development as demonstrated by the DAS. Chapter GP8 (use of conditions) paragraph 88 gives advice on the use of conditions to secure details included in a DAS.

43.Where the form in an outline application identifies matters for approval at outline stage, and those matters are shown on detailed plans, those matters must be determined in the decision at that stage. This approach is consistent with the advice given in GP8 para 22.

44.However, the form in an outline application may reserve matters for subsequent approval, but then show the matters on detailed plans, which are not marked as being for illustrative purposes only. Para 44 of Circular 11/95 states that an applicant can submit details of part of an outline application, ie any of the “reserved matters” for approval at that stage. It then goes on to say that “unless the applicant has indicated that those details are submitted “for illustrative purposes only”(or has otherwise indicated that they are not formally part of the application)” those details must be determined at outline stage. Thus where detailed plans are submitted without the notation that they are for “illustrative purposes only”, it is necessary to look at the application forms to identify whether it has been “otherwise indicated” that the details shown in the plans are not formally part of the application. Where the forms have been completed to indicate that the details shown in submitted plans are reserved for subsequent approval, then that is the indication that those details remain as reserved matters which are not for determination at outline stage.

45.Clearly there may have been an error on the part of the appellant when completing the forms, or circumstance may have changed in the course of the application’s progress. In written representations casework the Inspector needs to check the correspondence to ensure that there has been no change in the status of the reserved matters from that shown on the original application form, but it should not be necessary to go back to the parties. Where the appeal is dealt with by means of Hearing or Inquiry, the matter can be clarified between the appellant and the Council. However, the Inspector will need to be certain that the Council has consulted on the application in the form in which s/he intends to deal with it. For example, if the Council consulted on the basis of details shown in submitted plans being reserved for subsequent approval, it is unlikely that the Inspector would determine those details as part of the application. A short sentence clarifying the approach taken to the plans (that the plans have been treated as illustrative) may be inserted into the decision.

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46.Guidance is provided in HC120 as to how an Inspector should deal with detailed plans submitted on matters which remain as reserved in the outline application. Whether or not the plans are marked as illustrative, they are material to the Inspector’s consideration of the principle of the development. Plainly the fact that the plans may relate to a matter that falls within those said to be reserved means that the Inspector should not treat them as if the appellant were tied to them. However, where the appellant argues his case as if the plans were what is intended to be built, the Inspector is entitled to take the appellant at his word and give those plans significant weight.

Reserved Matters

47.Applications for the approval of reserved matters must be consistent with the terms of the associated outline permission. If they plainly are not, for example where the outline permission authorises no more than three houses to be built on the appeal site whereas the reserved matters application proposes to compress the buildings and their curtilages on to only half the site, the appeal should be formally dismissed on the grounds that the details submitted are not authorised by the outline permission. If it is clear that the application was submitted to and dealt with by the LPA as a reserved matters application, an Inspector cannot deal with it as if it were a fresh application for full planning permission. The publicity requirements for the two types of application are different and treating a purported reserved matters application as if it were a new full application could prejudice any third party interest.  

The Issue of Whether Planning Permission is Required

48. Occasionally appellants argue that their proposal does not require planning permission. Inspectors should continue to decide the planning appeal on its merits unless it is withdrawn. Even if an Inspector is satisfied that planning permission is not required, PINS will not write to the parties to say that no further action will be taken. Legal advice is that PINS cannot do this in respect of a s78 appeal other than one travelling with an enforcement appeal - once an appeal is made it should be determined.

49.If an Inspector is allocated an appeal where he/she considers that planning permission is not required, but this issue has not been raised by any of the parties, there is no obligation to raise it with them. The question of whether or not permission is required does not affect the validity of the appeal. Even where there has been reason for the Inspector to raise the issue at the inquiry or hearing, or by asking the support group to write to the parties, he/she should still determine the case on its planning merits unless the applicant withdraws the appeal.  

50.In the event that the support group is asked to write to the parties, it should ensure that the appellant is aware that, whatever the outcome of the discussion, the Inspector will determine the appeal unless it is withdrawn. Whatever the outcome of the appeal, the appellant still has the right to apply for a certificate of lawfulness of existing/proposed use or development under s191/192. Determinations under these sections are not affected by the issue of a S78 decision on the same development.  

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51.In a case where the issue has been raised and it is intended to dismiss the appeal on its merits, the decision should refer to the separate procedure under s191/192. This matter should be dealt with at the start of the decision and the following is suggested as a model:

“Although the application sought planning permission for ...... the appellant contends that planning permission is not required. Whether or not planning is required is not a matter for me to determine in the context of an appeal made under S78 of the above Act. It is open to the appellant to apply for a determination under sections 191/192 of the above Act to determine this matter. My determination of this appeal under section 78 of the above Act does not affect the issuing of a determination under s191/192 of the same Act.”

52.In enforcement cases, an appeal may be made on ground (c) in s174(2) to the effect that the development does not constitute a breach of planning control. Where a planning appeal is travelling with an enforcement appeal and the enforcement appeal is to be allowed under ground (c), it would clearly be pointless to decide the planning appeal. In such a case it would be enough to say that, in the light of the decision on the enforcement case there is no need to determine the accompanying planning appeal.

Temporary Permission

53.Circular 11/95 (conditions) paragraph 109 seems to suggest that if a development is refused permanent permission because of its harmful effects it would not be appropriate to grant a temporary permission for the development as there is no difference between the material considerations in the two cases. However, the High Court has ruled that this test is set too high when compared with the test for permanent permission.2 Such a test, the Court held, failed to recognise cases where it might be considered that while the harm done by a permanent development would warrant refusal, the balance between the reasons for granting permission and the reasons for refusing permission may be altered if the development is temporary. The effect of a development on its surroundings must be reduced if it was limited to, say, 3 years rather than be permanent. Consequently, when dealing with appeals for permanent permission Inspectors must show that they have balanced the case for temporary permission against the harm which would be caused by permanent permission.

Defamatory Remarks

54.Defamatory remarks must not be made in decision. This applies equally whether the remarks are the Inspector's own comments, or whether he/she is merely reporting something, said by one of the parties. The fact that the Inspector is only repeating the view of another party does not absolve him or her or the Inspectorate from responsibility. Reporting of any defamatory statement constitutes the publication of a libel.

Environmental Impact Assessment (EIA)

2 McCarthy, Sheridan & Others v SoS & South Cambridgeshire DC 2006 EWHG 3287

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55.Chapter GP12 (Environmental Impact Assessment) [5E] gives advice on this subject. Inspectors are advised to read that carefully and thoroughly when dealing with a case where EIA has been, or should have been, prepared. Circular 02/99 (applies to England only) gives guidance on the circumstances in which EIA has to be carried out before planning permission can be given for certain types of major projects likely to have significant environmental effects. The relevant regulations are the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293). These introduced a procedure for “screening” planning applications to determine whether EIA is required. Inspectors need to be aware of this procedure (see 5E paragraphs 13-23) 

56.When reporting cases where an Environmental Statement was submitted reference should be made to paras 45-49 of the EIA chapter in the Inspectors’ Handbook (Chapter GP12).

Fear as a material consideration

57.In West Midlands Probation Committee v SSE (1997) the Court of Appeal held that fear of crime could be a material planning consideration. In this particular case, there was evidence to support the argument that people’s lives had been adversely affected by an existing bail hostel use and so the proposal to extend that use further meant that local resident’s fears had a sound evidential base and were a legitimate planning objection.

58.In Newport v SSW (1997) , the Court of Appeal held that local residents’ fears about the harmful effects on the health of people living near a chemical waste transfer station were capable of being a material consideration, notwithstanding that there was no objective evidence to support such a fear. The court added, however, that by itself such unfounded fear would rarely (if ever) be a reason to justify the withholding of planning permission.

59.In Smith v FSS (2005), the Court of Appeal quashed a decision on a gypsy caravan site because the Inspector treated local residents’ fear of crime as a material consideration. It was held that there was no reliable evidence to link past criminal activity with either the site or the appellants. The Court held that to be able to take past incidents into account it would be necessary to attribute them to the individuals concerned and the land use itself. A caravan site was not like a bail hostel and it was not right to view the use of land as a caravan site as inherently creating the real concern that could be associated with land uses such as a bail hostel.

60.Unjustified fear motivated by prejudice can never be a material consideration. For fear of crime to be material, there will need to be some reasonable evidential basis for that fear. The precise weight to be given to the argument will be a matter for Inspectors but will clearly be dependent on the quality of the evidence.

61.However, the use of land as a gypsy caravan site does not inherently create the risk of crime. Unless there is cogent evidence linking the land with criminal activity and the past behaviour of its intended occupiers (rather than unsupported evidence about the characteristics of future occupiers) fear of crime will not be a legitimate ground on which to withhold planning permission.

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62.The judgment in Smith, if read across into other types of public concern cases (e.g. mobile phone masts or clinical waste incinerators), may not appear to sit easily with the judgment in Newport. However, until the position is clarified Inspectors should in these other types of case take into account genuine but unsubstantiated fears but give them little weight if there is no objective supporting evidence.

Retention of Inspectors’ Notes

63.PINS destroys files one year after the date of decision unless there has been a High Court challenge or post decision correspondence. In transferred cases, Inspectors should retain their inquiry/hearing/site visit notes for 15 months from when they submit their decision for issue. In recovered and call-in cases, Inspectors should retain their inquiry/hearing/site visit notes for 15 months from when they are notified of the SoS’s decision. Inspectors retiring or leaving PINS should return their inquiry/hearing/site visit notes for all cases worked on within the last 15 months of their engagement to Human Resources, 4/07, TQH. The exception is where there has been a challenge; Inspectors are always notified of challenges in transferred cases and in such cases must keep their notes until they have been notified of the final judgement, having regard to the possibility of subsequent referral to the Court of Appeal or House of Lords. 

General

64.The Inspector appointed to determine the appeal is solely responsible for what is decided. A decision can never be the result of a discussion or consultation with another Inspector, IM, Policy Unit or procedure group. When another Inspector is asked to read a decision prior to issue, it is always against that background. However, it may be appropriate for the appointed Inspector to ask (for example) for the latest published guidance on a particular point or if there has been any recent legal judgements on similar types of cases.

Policy Advice

65.The Policy Unit has set up a Helpline (telephone ext. 8008 or for queries on complex matters email Policy Helpline). The Unit will assist with queries on the Acts, Circulars, PPGs/PPSs, official statements, parliamentary answers etc. If you require copies of specific documents, please contact the library on Ext. 8677. The Unit will also guide Inspectors towards sources of information and will help (or direct the Inspector towards help) on any item in the Inspectors’ Handbook or PINS Notes. Inspectors may seek advice on the existence of, and past application of, government policy from the Policy Unit but it is the Inspector's responsibility alone to decide how the appeal should be dealt with in the light of Government policy as it is written.

66.The Policy Unit is interested to hear from Inspectors about any practical problems, novel situations or difficult policy issues. These are recorded and used in the formulation and updating, of advice to Inspectors, and the Planning Division of DCLG may also be apprised of such issues.

Legal Advice

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67. Legal advice is provided for Inspectors through a tiered reference system. Initial advice is available from the Planning Inspectorate’s in house lawyer. Advice may be sought from CLG lawyers where required.

Inspectors may take legal advice on 3 kinds of specific question:

i. whether there is a legal point to be dealt with at all

ii. whether a particular decision would be legally open to them

iii. if conditions are to be imposed on a planning permission, on the precise wording of the conditions.

They may also seek advice on a general point of law.

Inspectors who need legal advice must seek it via their line manager (who will involve the Policy Unit as appropriate): Inspectors should never speak directly to lawyers about a case they have been appointed to determine.

It is important that, wherever possible, Inspectors express a view on the matter in their decisions after having considered all the legal arguments.

68.Where a decision on planning merits cannot properly be taken without a complicated or difficult legal issue being decided first, jurisdiction may have to be recovered by the Secretary of State. Inspectors should consult their AD as the first step in such a situation. There may, however, be cases where the legal point is a comparatively minor matter of interpretation. In these circumstances the advice must be strictly limited to adding to the Inspector’s own general knowledge of the law and not express a view about the case in hand. Provided that is adhered to, it is unnecessary for the Inspector to refer in the decision to having received the advice. Inspectors should not refer in the decision to the fact that legal advice has been taken.

Applications for non-material amendments

69. Statutory provisions came into effect on 1 October 2009 in England for making applications for non-material and minor material amendments to planning permissions and for applications to extend the time limits for implementing permission. CLG’s guidance “Greater Flexibility for Planning Permissions” gives guidance on these arrangements. PINS Note 1127a gives initial advice on all 3 types of application. Additional guidance on applications for non-material amendments is given below. Further guidance on dealing with appeals involving applications for minor material amendments and for extending the time limits for implementing permission will follow in due course.

70. S96A of the 1990 Act allows a non-material amendment to be made to an existing planning permission. There is no statutory definition of ‘non-material’ because it depends so much on the context of the scheme – what may be non-material in one context may be material in another. This approach reflects that in Burroughs Day v Bristol City Council [1996] 1 P.L.R 78 where, in dealing with a question about whether works to a listed building amounted to development requiring planning permission, the court held that a change in external appearance

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had to be judged for its materiality in relation to the building as a whole, not by reference to a part of the building taken in isolation. Further, it was recognised that a change, e.g. in the form of an external advertisement, might not be material on the front of a newsagent’s shop but could have a very different result if attached to an eighteenth century house.

71. Consideration of materiality is also not confined to the external appearance of a building. For a change to be material it must be of significance, of substance and of consequence. That does not mean it has to be harmful. A similar approach to ‘materiality’ may be taken in cases involving changes of use, where the courts have held that, in borderline cases, it is proper to assess it in planning terms, having regard to the possible effects of the change on local amenity[1]. An obvious lack of harm in planning terms may thus point to a lack of consequence and in turn, of materiality, even where the changes may themselves be extensive and/or

See Encyclopedia of Planning Law P55.52

numerous. The assessment would of course include questions of design and appearance, indeed, of any considerations capable of being material in planning terms, but in the context of the permitted scheme as a whole. Inspectors must therefore be satisfied that the amendment or combination of amendments sought is non-material in order to allow an appeal. If not, the appeal should be dismissed.

72. Consideration of an appeal is limited to the non-material amendments sought and a decision to allow does not result in a new permission - the original permission still stands. The two documents should be read together.

73. So long as the need to do so clearly relates to the amendment sought new conditions may be imposed and conditions attached to the original permission may be altered or deleted. So long as this requirement is met there should be no need to consult the parties though the Inspector should as always consider each case on its circumstances and ensure that natural justice would not be breached. The reasons for attaching new/altered conditions or deleting others should of course always be given.

74. The To Be Aware Of section of this chapter includes an example appeal decision on an application for a non-material amendment.

CHECKLIST - Dos and don’ts

Do cover the main points raised by the losing parties, including third parties – at the application and appeal stage. But don’t labour over the case(s) of the winning parties.

Do deal with peripheral points briefly. Do use the correct legal tests, especially in Conservation Areas – words

matter.

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Do clearly identify the harm which the proposal may cause - if dismissing. Do conclude how the proposal stands in relation to the development plan.

Do be tactful: avoid criticism of parties, policies, the nature of the locality or other developments that have been drawn to your attention.

Do briefly summarise policies (if you need to), in groups, focussing on key policies. A reference to the relevant policy number(s) and a brief indication of what the policy relates to is normally sufficient.

Do concentrate on the policies which could make a difference to the decision.

Do use the metric system for all measurements except: o the use of non-metric units of measurement as supplementary

indications, e.g. in brackets (following the metric measurement); 

o feet for aircraft height;  

o miles and mph for road traffic purposes in the context of statutory speed limits.

Do email Martin Smith examples of good, well structured and concise decisions (and not so good examples) for inclusion in this chapter.

Do put the Attendance List, for hearings and inquiries, on the LH side of the file to identify those who have requested copies of decisions.

Don’t make unnecessary references to government policy – just apply it. Don’t repeat/summarise at length any/all of the policies referred to by the

parties. Don’t repeat the views of the parties. It’s your view that counts in your

decision. Don’t describe features to which you make no further reference. Avoid the

reader thinking ‘so what?’ It is confusing and time consuming. The more you write the more you will get wrong.

Don’t refer to sections of Acts. Just do what they say. Don’t exaggerate harm or benefits of a scheme. Don’t use conditions suggested by the lpa, even if you think a condition is

needed, without checking it is correctly written Don't use the terms “retention” and “continuation” in S73A cases. The

description should simply refer to the original act of development.

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