Alan Overton: Planning Appeals - small site developments and the case for change

Alan Overton is a retired Civil Servant

Applications for planning permission to develop small residential sites within cities and towns are frequently controversial. Those that involve building on existing back garden land are particularly so. They are controversial because they bring with them, for neighbours and those living in adjoining and adjacent properties, ongoing problems of overlooking, disturbance, noise and light pollution, and issues of access, parking and security, particularly where previously adequate side walls and fences suddenly become exposed to unrestricted public access and thus vulnerable to opportunistic thieves, burglars and intruders. There is much empirical evidence to support the reality of these problems.

So great have these become that many local planning authorities (LPA’s) have been obliged to introduce specific policies to restrict or prevent such developments, and back gardens have been removed from the designation as previously developed land. This exclusion remains extant in the National Planning Policy Framework (NPPF) introduced last year.

Back gardens, however, remain vulnerable to predatory developers, who long ago realised that with application refusals open to appeal the real power of decision now rests with the Planning Inspectorate (PINS), and not with the LPA’s at all. Decisions made by LPAs and by elected Councillors in Planning Application Committee (PACs) are routinely treated with open contempt by some developers who submit repeated applications followed by appeals, sometimes for a decade or more until, finally, they are fortunate enough to find a PINS Inspector who will allow the appeal and to grant permission despite concerted and united local opposition stretching back over many years. Inspectors, as a matter of deliberate policy, are selected who do not have any significant connection with the area in which they work or with any of the parties concerned, ostensibly for reasons of impartiality, but they are, in consequence, fundamentally ignorant of the local conditions, issues and views that are the reason for refusal in the first place.

The Inspectors' decision in matters of planning judgement (as distinct from error of law or Wednesbury unreasonableness) is final and cannot be challenged in High Court. Relevant case law includes Lord Hoffmann, Tesco Stores v. Secy of State for the Environment, 1995, and Sullivan, J, R(Newsmith Stainless Ltd.) v. Secy of State for the Environment, Transport and the Regions, 2001. Nor can the Inspector’s decision be changed, even by the Secretary of State who appoints him or her. Decisions that are immutable in this way are unacceptable and should have no place in a modern society.

Appeals are conducted by means of written representation, public hearing or local inquiry and the guidance notes to the PINS criteria make plain that LPA’s are in the best position to decide on the method of appeal to be employed in cases which they judge to be controversial. In reality, however, it is PINS that make the decision, and any LPA aggrieved by that decision must seek redress through Judicial Review with the significant expense and expenditure of resources that such a course inevitably generates.

Costs may be awarded against either party, or third party, in the event that the said party can be shown to have acted unreasonably, and by so doing to have caused the party applying for costs to incur unnecessary or wasted expense in the appeal process. Inspectors are regularly asked by appellants to award costs, and guidance in such cases is contained within Communities and Local Government Circular 03/2009.

The fear of a refusal generating an appeal which, win or lose, carries the risk of an award of costs –  a potentially significant charge on local taxpayers – is very real. There can be no doubt but that this, de facto and by default, becomes a material consideration for coucillors, and has led to the grant of permission when the lack of quality or the otherwise unsatisfactory nature of an application should, by rights, merit a refusal.

Regular correspondence in the national press, and a torrent in recent months, indicates a deep dissatisfaction with and utter loss of faith in the planning process - and with the Planning Inspectorate in particular. It is completely unacceptable for residents to be invited to comment on applications, and to see their valid and genuine concerns, having been properly addressed by professional Planning Officers and by Councillors, resulting in a well-merited refusal - only to see that decision appealed and promptly overturned by some unknown, unelected and unaccountable Inspector whose knowledge of the area is scant to non-existent. And with no means of challenge or redress whatsoever.

This corrosive state of affairs must end. The recent reform of the planning system, with local plans and neighbourhood plans yet to bed in, must be accompanied by an equally wide reform of the appeal system if public faith in planning and local development – indeed in the whole concept of localism - is to survive.

For planning applications for small site developments, which are a major source of local controversy, the powers of the Inspectorate to simply overturn the decision made by the LPA should be abolished. Inspectors, on appeal, should consider the arguments made by all parties and make recommendations. If, in the Inspector’s opinion, the appeal has merit, the LPA should be required, on refer-back, to reconsider the application in the light of the Inspector's findings and comments. The final decision, however, must remain with the LPA and, in particular, with Councillors in PAC, who are democratically elected and answerable to the local community. Appeals that fail will, of course, be dismissed by the Inspector as they are at present.

Whatever the outcome, the Inspector should retain the power to award costs to any party. That is right in principle and it will act as a spur to all parties to ensure that evidence is produced on time, decisions are reached speedily and planning judgements are soundly based.

To further progress the Government’s localism agenda, the right to decide the method of appeal to be adopted should be devolved to the LPA. LPA’s are in the best position to gauge local reaction to each application and the level and method of appeal more properly rests with them.

Furthermore, Inspectors should be appointed who do have local knowledge of the area in which the appeal site is situated. They will thus be better able to judge the merits, or otherwise, of the grounds of appeal and to set them in context, and with responsibility for the final decision being restored to the LPA, the question of bias by the Inspector disappears.

Society is changing, and the current system of dealing with planning appeals is no longer fit for purpose. Demand for transparency and accountability in public office, including quangos such as the Planning Inspectorate, is higher today than ever before and the localism agenda, if it means anything at all, means local communities deciding on planning applications that profoundly affect the lives and the dwelling places of the people who make up those communities.