The Appeal ProcessThe Appeal Process

Ben LinscottBen LinscottAssistant Director, PlanningAssistant Director, Planning

The Planning InspectorateThe Planning Inspectorate15 February 201115 February 2011

Brighton & Hove Planning ForumBrighton & Hove Planning Forum

The Planning Inspectorate

•Planning, enforcement, environmental appeals:

• Inquiries

• Hearings

• Written Representations

• Decisions are made in the public interestDecisions are made in the public interest

• Decisions are based on the evidence providedDecisions are based on the evidence provided

• Principles of openness, fairness and impartiality

Our Performance measures

• Issue Decisions/Reports in accordance with Bespoke timetable in all cases

• Determine 80% of householder appeals within 8 weeks

• Process 80% of remaining s78 appeals end toend within 6 months (26 weeks)

Planning Act 2008Planning Act 2008

An appeals system that:- is more proportionate to the type and complexity of each appeal- has improved customer focus and efficiency at its core- is better resourced

Key measuresKey measures

Determining the procedure – Written Determining the procedure – Written Representations, Hearing or Inquiries Representations, Hearing or Inquiries

Improved procedures/guidance on appeal Improved procedures/guidance on appeal handlinghandling

New Costs Circular – extension of costs to New Costs Circular – extension of costs to Written RepresentationsWritten Representations

What has changed / is changing?What has changed / is changing?

Nature & content of documentsNature & content of documents Submission of evidenceSubmission of evidence Introducing new materialIntroducing new material Fixing of inquiry and hearing datesFixing of inquiry and hearing dates Statements of common groundStatements of common ground CostsCosts Enforcement provisionsEnforcement provisions

Nature and content of documentsNature and content of documents

Appeals should be complete on Appeals should be complete on submission – ie they include:submission – ie they include:- the appeal form- the appeal form- all relevant plans and drawings - all relevant plans and drawings that were the that were the subject of the subject of the applicationapplication

- the relevant certificates- the relevant certificates- design and access statement - design and access statement where required where required

At least 30% of all appeals are At least 30% of all appeals are incompleteincomplete

Submission of evidenceSubmission of evidence

Adhere to the timetables set in RulesAdhere to the timetables set in Rules ““No surprises” – it is not about wrong footing No surprises” – it is not about wrong footing

the oppositionthe opposition Evidence should be focused, relevant, Evidence should be focused, relevant,

necessary and as concise as possible (aim for necessary and as concise as possible (aim for max 3000 words) – shared core documents.max 3000 words) – shared core documents.

PINS to develop Templates to improve the PINS to develop Templates to improve the quality and reduce the quantity of evidencequality and reduce the quantity of evidence

Make proper use of the Costs regime to Make proper use of the Costs regime to regulate behaviourregulate behaviour

Introducing new materialIntroducing new material

Appeal should be last resortAppeal should be last resort Minor changes or revised proposals – Minor changes or revised proposals –

application of “Wheatcroft principles”application of “Wheatcroft principles” LPA has right to expect fully worked out LPA has right to expect fully worked out

proposals – not about developers ‘crystal proposals – not about developers ‘crystal ball gazing’ball gazing’

““De novo” role of SoS - “De novo” role of SoS - “maymay deal with the deal with the application as if it had been made to him application as if it had been made to him in the first instance.” S79(1)(b) 1990 Actin the first instance.” S79(1)(b) 1990 Act

Amendments to schemes Amendments to schemes (Wheatcroft judgement)(Wheatcroft judgement)

““is the development so changed that to grant is the development so changed that to grant it would be to deprive those who should have it would be to deprive those who should have been consulted on the changed development been consulted on the changed development of the opportunity of such consultation”of the opportunity of such consultation”

Crucial to establish whether or not all relevant Crucial to establish whether or not all relevant parties have had the opportunity to consider parties have had the opportunity to consider proposed amendments (inc statutory bodies)proposed amendments (inc statutory bodies)

Advise the Planning Inspectorate asap – Advise the Planning Inspectorate asap – including reasonsincluding reasons

Unreasonable behaviour? CostsUnreasonable behaviour? Costs

Fixing event datesFixing event dates

20 week target20 week target Previously high rate of rejection (80%+) of Previously high rate of rejection (80%+) of

first offer datefirst offer date Expectation that appellants are ready when Expectation that appellants are ready when

they appeal & LPAs ready to defend decisionthey appeal & LPAs ready to defend decision Encourage early dialogue between main Encourage early dialogue between main

parties on availability within timetablesparties on availability within timetables Aim to offer 2 dates one of which will be fixed Aim to offer 2 dates one of which will be fixed

(or mutually agreed date)(or mutually agreed date) Bespoke timetabling for more complex casesBespoke timetabling for more complex cases

Determining the procedureDetermining the procedure

Adopting the procedure appropriate to the caseAdopting the procedure appropriate to the case Applying published criteria to identify Applying published criteria to identify

appropriate procedureappropriate procedure Extending costs to Written Representation Extending costs to Written Representation

casescases Parties to suggest appropriate procedure Parties to suggest appropriate procedure

against published criteriaagainst published criteria Professional expertise informs administrative Professional expertise informs administrative

decisions – reasons given where disagreementdecisions – reasons given where disagreement Inspector discretion to change procedureInspector discretion to change procedure Everybody’s interests to get correct procedureEverybody’s interests to get correct procedure

Determining the procedureDetermining the procedurePlanning: Determination of procedure by procedure type 9 April 2010 - 1 April 2011

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Changes a

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Changed from appellant choice Challenged by appellant Challenged by LPA PINS agreed with challenge Intake

Charging for appealsCharging for appeals Appellant to pay – less burden placed on Appellant to pay – less burden placed on

public purse (around 30% of cost)public purse (around 30% of cost) Based on appeal method and time takenBased on appeal method and time taken Proposal for Section 78 appeals - planning Proposal for Section 78 appeals - planning

application submitted to LPA on or after 6 application submitted to LPA on or after 6 April 2010 - HAS 1 October 2010April 2010 - HAS 1 October 2010

Formal consultation from DCLG due SpringFormal consultation from DCLG due Spring

CostsCosts

Extended to Written Representation casesExtended to Written Representation cases Importance of robust costs process to Importance of robust costs process to

regulate systemregulate system Important for parties to use the costs Important for parties to use the costs

regime effectivelyregime effectively Costs do not follow outcome – basis is Costs do not follow outcome – basis is

unreasonable behaviour leading to unreasonable behaviour leading to unnecessary expenseunnecessary expense

Revised Circular 3/2009Revised Circular 3/2009

GuidanceProcedural guidance:Procedural guidance: Planning appeals and Planning appeals and

called in planning called in planning applicationsapplications

Enforcement appealsEnforcement appeals

Good practice advice notes:Good practice advice notes: Bespoke caseworkBespoke casework AmendmentsAmendments New evidence/materialNew evidence/material

www.planningportal.gov.ukwww.planningportal.gov.uk

Good Practice Advice (GPA) Good Practice Advice (GPA) 01/2009 Further advice on applying the criteria 01/2009 Further advice on applying the criteria 02/2009 Household Appeals Service02/2009 Household Appeals Service 03/2009 Called in planning applications03/2009 Called in planning applications 04/2009 Secretary of State recovered cases04/2009 Secretary of State recovered cases 05/2009 Bespoke casework service 05/2009 Bespoke casework service 06/2009 Communicating electronically with PINS06/2009 Communicating electronically with PINS 07/2009 Nature and content of appeal documents 07/2009 Nature and content of appeal documents 08/2009 Guidance on statements of common ground08/2009 Guidance on statements of common ground 09/2009 Amendments to Schemes (Wheatcroft)09/2009 Amendments to Schemes (Wheatcroft) 10/2009 Introducing new material at appeal 10/2009 Introducing new material at appeal 11/2009 Meeting the timetables11/2009 Meeting the timetables 12/2009 Fixing dates12/2009 Fixing dates 13/2009 Appeal Procedures – Events13/2009 Appeal Procedures – Events 14/2009 Correction of errors14/2009 Correction of errors 15/2009 Complaints and challenges15/2009 Complaints and challenges

http://www.planningportal.gov.uk/england/public/planning/appeals/http://www.planningportal.gov.uk/england/public/planning/appeals/guidanceguidance

Good Practice Advice - IGood Practice Advice - I

Two main documentsTwo main documents Procedural Guidance: Planning appeals and Procedural Guidance: Planning appeals and

called-in planning applications (PINS 02/2009);called-in planning applications (PINS 02/2009); Procedural Guidance: Enforcement appeals Procedural Guidance: Enforcement appeals

and determination of appeal procedure (PINS and determination of appeal procedure (PINS 02/2009)02/2009)

It replaces DETR Circular 05/2000It replaces DETR Circular 05/2000 Underpinned by a written ministerial Underpinned by a written ministerial

statementstatement

Good Practice Advice Notes - IIGood Practice Advice Notes - II

Further advice on applying the criteria for Further advice on applying the criteria for determining the appeal methoddetermining the appeal method

Criteria for Determining the appeal Criteria for Determining the appeal methodmethod

Household Appeals ServiceHousehold Appeals Service Bespoke casework serviceBespoke casework service Communicating electronically with PINSCommunicating electronically with PINS Amendments to Schemes (Wheatcroft)Amendments to Schemes (Wheatcroft) Introducing new material at appealIntroducing new material at appeal

Core Principles - ICore Principles - I

Critical importance of regular and Critical importance of regular and continuing dialogue between partiescontinuing dialogue between parties

Meet the statutory timetables to Meet the statutory timetables to ensure no-one is disadvantagedensure no-one is disadvantaged

Reasons for refusal are clear, Reasons for refusal are clear, comprehensible but precise – this comprehensible but precise – this includes member overturnsincludes member overturns

Appellants – clear, precise and Appellants – clear, precise and comprehensive grounds of appealcomprehensive grounds of appeal

Core Principles IICore Principles II

Appellants – do not introduce Appellants – do not introduce substantial changes which could lead substantial changes which could lead to any party being prejudiced to any party being prejudiced (Wheatcroft case)(Wheatcroft case)

The appeal should not be used as a The appeal should not be used as a bargaining tactic, but as a last resortbargaining tactic, but as a last resort

Only appeal when ready & committedOnly appeal when ready & committed Costs regime to regulate the systemCosts regime to regulate the system

Role of the Inspector

• Impartial judgement – wholly independent of parties

• Clear as to what evidence is required – early identification of issues

• Ensure that evidence to inquiry or examination is properly tested

• The Inspector is not there to negotiate

• The Inspector is not an expert in all matters – hears evidence

• Reasoned decision based on law, policy, evidence Reasoned decision based on law, policy, evidence

Role of the witnessRole of the witness

To assist the InspectorTo assist the Inspector Present evidence and answer questionsPresent evidence and answer questions Failure to answer questions harms credibilityFailure to answer questions harms credibility OK if outside your expertise or knowledgeOK if outside your expertise or knowledge Expect robust questioning Expect robust questioning Inspector will normally intervene if advocate Inspector will normally intervene if advocate

is is harassing witness or being intimidatingharassing witness or being intimidating Inspector will also intervene if witness is Inspector will also intervene if witness is

being being repetitive, or failing to answer repetitive, or failing to answer questionquestion

Inspector may ask questions to clarify a pointInspector may ask questions to clarify a point

The expert witness - dutyThe expert witness - duty Expert evidence is evidence that is given by a person who is Expert evidence is evidence that is given by a person who is

qualified by training and experience in a particular subject or qualified by training and experience in a particular subject or subjects to express an opinion. It should be endorsed as such.subjects to express an opinion. It should be endorsed as such.

It is the duty of an expert to help the Inspector on matters within It is the duty of an expert to help the Inspector on matters within his or her expertise. This duty overrides any obligation to the his or her expertise. This duty overrides any obligation to the person from whom the expert has received instructions or by person from whom the expert has received instructions or by whom he or she is paid. whom he or she is paid.

The evidence should be accurate, concise and complete as to The evidence should be accurate, concise and complete as to relevant fact within the expert’s knowledge and should represent relevant fact within the expert’s knowledge and should represent his or her honest and objective opinion.his or her honest and objective opinion.

Identify the main issuesIdentify the main issues

Look at all evidence (for and against) objectively / in the roundLook at all evidence (for and against) objectively / in the round

The Householder Appeals Service

Making it easier, simpler and quickerMaking it easier, simpler and quicker

Householder Appeals Service – Making it easier, simpler and quicker

Householder Appeals Service - Householder Appeals Service - PrinciplesPrinciples

New way of working New way of working

Simpler and saves all parties’ time and Simpler and saves all parties’ time and resourcesresources

Builds on good practice of Local Builds on good practice of Local Planning Authorities (LPAs)Planning Authorities (LPAs)

Uses proportionate process & procedureUses proportionate process & procedure

Maintains qualityMaintains quality

Householder Appeals Service – Making it easier, simpler and quicker

Franks PrinciplesFranks Principles OpennessOpenness FairnessFairness ImpartialityImpartiality

Contact detailsContact details

Ben LinscottBen Linscott Assistant Director – PlanningAssistant Director – Planning Room 3/12, Temple Quay House, 2 Room 3/12, Temple Quay House, 2

The Square, Temple Quay, Bristol The Square, Temple Quay, Bristol BS1 6PNBS1 6PN

0117 372 89550117 372 8955 ben.linscott.p4@pins.gsi.gov.ukben.linscott.p4@pins.gsi.gov.uk