Monday, 6 June 2011

The future of appeals


When following debates in the Commons on the Localism Bill, I noticed a rather ominous passage in a speech by Greg Clark, in which he acknowledged that the right of appeal is a reasonable safeguard, but he then went on to say: “ I want to make the local plan clear and sovereign, so that it becomes the determinant of planning applications, so that they do not need to go to appeal. The combination of neighbourhood plans and local plans in the new system will be much more robust than at present. Too often at the moment, an appearance before the planning committee is merely the first step on the way to an appeal, and that is the wrong way to do planning.” (emphasis supplied)

I am not the only commentator to have noticed these words, and it warns us that the suggested changes to the appeals system canvassed in the Conservatives’ pre-election ‘Green Paper (“Open Source Planning” [sic]), whereby appeals would be reduced to a mere desk-based checking exercise, may still be in the pipeline for later implementation. We should be grateful, I suppose, that this proposal was not shoved into the Localism Bill, but this should not make us complacent about the longer-term future of the right to bring a fully argued appeal in respect of unjustified refusals of planning permission.

Clark is living in Cloud-cuckoo-land if he believes that the combination of neighbourhood plans and local plans now being introduced in the Localism Bill will be much more robust than the current development plan system. It will simply add further chaos to an already unworkable procedural morass. There are, in any event, important material considerations other than the development plan itself which must be taken into account in reaching a decision on a planning application or appeal.

The idea of effectively emasculating the appeals system has been bouncing about inside the Tory party for some years, and it was advocated by John Seldom-Glummer in his regular column in Planning magazine back in 2006. It prompted me to pen the following riposte in this blog at the time. Here is what I wrote:

Why don’t we just scrap the appeals system?

[First published 4 September 2006]

Perhaps one shouldn’t rise to the bait, especially when it is dangled by a has-been politician, but I was so amazed to see in print the most recent aper├žu by John Seldom Glummer in his regular column in ‘Planning’ magazine, that I simply could not resist the temptation to respond to it here.

Gummer opined that the planning appeals system should be scrapped. He particularly objects to Inspectors basing their decisions on up-to-date information, such as changed planning policies, revised ministerial planning guidance, recent judicial authority and the like, which may not have been available to the LPA when it originally determined the application. What Gummer wants is simply a desk-based review of the papers, just to make sure there was no mistake.

We are all aware of the profound ignorance of the planning system among politicians at all levels, but Gummer’s lack of appreciation of the nature and purpose of the planning appeals system is breath-taking - and this man is a former Secretary of State for the Environment!

Just in case any of the planning professionals for whom this commentary is primarily written might be tempted to support Gummer’s bizarre views on the subject, this may be a timely opportunity to remind readers of the principles that underlie our planning appeals system.

It is a very well established principle of administrative law and practice that that there should be some system by which administrative decisions of all types can be reviewed by an impartial tribunal. This is especially important where the original decision is made by elected representatives who may well be subject to various political pressures in reaching their decisions. It was for that reason that the 1947 Act gave the right to applicants to appeal to the Secretary of State against the refusal of planning permission. I have sat through enough planning committee meetings over the past 30 years or more to be acutely aware that many elected members are pig-ignorant about planning, and cannot be trusted to make sensible decisions about anything. An appeals system is essential while applications continue to be determined by local planning authorities with member involvement.

In accordance with well-established practice which is certainly not confined to planning appeals, the appeal takes the form of a complete rehearing of the case, not just a review of the decision itself. The reason for that is that the tribunal (in this case a planning inspector) is unlikely to be able to derive sufficient information from the decision itself to be able to come to a sound conclusion on the appeal.

It is in any event a principle entrenched in our administrative law that both parties should have the opportunity of being heard by the appellate tribunal, whether orally or simply in writing. This is one of the rules of natural justice – ‘Audi alteram partem’ (Hear both sides). What Gummer is calling for, one hopes in vain, is an abrogation of a fundamental principle of British administrative law and practice, guaranteeing the right of the citizen to a fair trial of their case in civil as well as criminal matters (reinforced now by Article 6 of the European Convention on Human Rights).

So far as I am aware, John Gummer has no official remit on behalf of his party as a spokesman on planning matters, so maybe we should ignore his outpourings. It is, however, disturbing that someone who might reasonably claim to be a ‘senior’ politician should be so woefully ignorant of the legal and administrative basis of the system for which he once had ministerial responsibility.

© MARTIN H GOODALL

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