Appealing a planning decision
Where a planning authority has behaved unreasonably and is being obstructive, or they may simply reach a decision that is contrary to planning policy the client will have recourse to a planning appeal. That said, planning appeals are usually a last resort and should only really be considered once an applicant has exhausted all options and dialogue with the planning authority.
We advise on the prospects of success on planning appeals and we usually lead on the planning appeal. Our solicitors have been involved in a wide range of planning appeals, from wind farm planning inquiries and housing developments to change of use appeals for large and small commercial premises.
When can I appeal against a planning decision?
Planning Appeals can be submitted against a refusal of a planning application or if someone has been served with an enforcement notice. If a planning application has been refused a first step should be to study the reason given by the planning authority of why the application has been refused.
Reference is normally made to policy as well as to what the ‘unacceptable harm’ is. A specialist planning lawyer will look behind these reasons and assess whether they actually hold up to scrutiny.
The reasons – policy
Planning authorities often mistakenly take into account policies that are no longer applicable or are even contrary to national planning policy. A specialist planning lawyer will study these policies closely, and assess whether they have been correctly interpreted. Occasionally a planning officer’s interpretation of policy is not a reasonable interpretation, and incompatible with the legal position.
In those circumstances the correct approach is to prepare an accurate interpretation of the policy and explain in a clear manner what should be the correct interpretation, demonstrating how the local authority interpretation is incorrect.
The reasons – factual
The second stage of assessing a refusal is to consider the factual statements that have been made by the local authority in their reasons for refusal. Often statements made by planning authorities are simply without foundation and not substantiated with evidence.
The first step is to assess the statement and question what evidence there is to support it. A lawyer should advise as to whether expert evidence is needed to contradict the incorrect statements, or alternatively whether any other evidence should be gathered to show that the factual basis of the decision was incorrect.
Planning conditions not considered first time around
Planning authorities will sometimes refuse an application because of planning harms that could in fact have been dealt with by imposing planning conditions that would alleviate the supposed harm. A planning condition permits development to go ahead subject to certain conditions being satisfied.
This might mean restricting the hours of use, or requiring specific approval before a development can proceed. It should be considered whether planning conditions could have been included and whether they should be submitted as part of an appeal.
In what circumstances can an appeal take place?
A planning appeal is usually appropriate in two circumstances:
- If a planning application has been refused and it is felt that there was a sufficiently strong case for it to have been approved, or
- where a person or business has been served a Planning Enforcement Notice and believes that the requirements of the notice are onerous or that the breach being enforced against should be given planning permission.
Appealing planning applications – the process
Planning Appeals can be appealed if a refusal to a planning application is given or if the local authority fails to determine the application within a reasonable time.
Firstly, the initial application needs to be assessed, and consideration needs to be given to whether the application was in fact properly submitted and to whether it could have been improved. If it could have been improved and the concerns raised by the local authority can be dealt with it may be best, rather than appealing, that a new application is submitted. This can avoid unnecessary legal fees. Sometimes starting from scratch and taking a proper approach with the original planning authority can be a cheaper and more effective way to deal with a refusal.
Sometimes it is clear that it is not possible to reach agreement with the planning authority. In these cases an appeal is usually the way forward. All the evidence that has been submitted as part of the application should be critically assessed. The reasons for refusal need to be analysed, and then the process of collecting appropriate evidence that give the client the strongest case possible must begin. The lawyer should liaise closely with any architects, surveyors or planning consultants who have been employed so that the right evidence is presented on appeal.
Structuring the evidence
Once all the evidence is in place the next step is to begin to structure the evidence in the most effective way. Written submissions outlining the client’s case should be drafted for the Planning Inspector. The submissions should contain the following information:
The planning proposal
- What planning benefit the planning application will bring. This can range from increasing the housing supply within the area or for a commercial change of use to show how the change would benefit local amenities. Comparatives should also be provided at this stage, and national and local statistics should be used, giving detail about the circumstances of why the application is needed and how it provides significant planning benefit.
- An assessment of the policy, showing how the application is supported by policy both on a local and national level. Decisions should be made in accordance with planning guidance and an appeal application should be shown to be supported by planning policy. If it exists, evidence of how cases similar to the application have been granted in past should be provided.
Contesting the original refusal
The reasons given by the planning officers for refusal should be provided, with an analysis and criticism as to the errors in that process. The reason for refusal might be because of a misreading of planning policy or simply a factual inaccuracy. Refusal can happen for many reasons and sometimes it may not even relate to planning but because councillors are playing politics with the application.
It should be shown in a clear and concise manner why the reasons for refusal are not correct, and what the correct interpretation should be. If, however, it is accepted that there are valid reasons to refuse, the application may present evidence and argument as to whether, rather than outright refusal, it would have been more appropriate for a condition to be attached to mitigate the harm. If conditions would have been more appropriate, they should be proposed. An example of conditions could be the material being used for development or even the hours of operation for the premises
After an appeal has been submitted
Once an appeal has been submitted, the Planning Inspector will confirm that the appeal is valid, meaning that it is in the system. The inspector will also confirm whether the appeal will be dealt with by way of written representations or whether an oral hearing is necessary.
The Planning Inspector may feel that due to the complexity of the issues an oral hearing is necessary. If this is the case the client will have to make a decision as to whether to be represented by a solicitor at the hearing, or whether the solicitor should bring in a barrister to speak. Advice should be obtained from the solicitor representing the client as to which is the best option.