Monday, 25 June 2012

Challenging and reviewing planning decisions

A disappointed objector recently asked me what chance I thought there was that objectors might in future be granted more extensive rights to vent their opposition publicly to planning applications of which they disapprove, including the possibility of their being given a right of appeal against the issue of planning permission in the teeth of local opposition.

I don’t think there is likely to be any significant change in opportunities for third party representations in the foreseeable future. The current arrangements give objectors a fairly good crack of the whip. You do at least have the opportunity nowadays to address the committee. That was an innovation when it was gradually introduced around the country some years ago – so three minutes per person in front of the committee is a definite concession. On some occasions this can lead to excessively long committee meetings.

The possibility of third party appeals has been repeatedly canvassed over the years. Even the Conservatives proposed it before coming to power in 2010. However, I imagine that ‘Sir Humphrey’ spelt out the practical consequences to incoming ministers very soon after the election, and so the idea was quietly dropped. Whilst a third party right of appeal would give planning lawyers like me a vastly increased amount of work, it would be very damaging to development and to the economy generally. The planning system is already unduly cumbersome and bureaucratic as it is, without adding yet another complication and resultant delaying factor.

On the other hand, judicial review is an unduly expensive and complex procedure for challenging the legality of planning decisions. I would like to see a much simpler and cheaper tribunal system but, like judicial review, this would have to be strictly confined to cases where it is clearly arguable that there was a legal or procedural error or some other illegality which should properly lead to the planning permission being quashed. Like judicial review, it would not be an opportunity to re-argue the planning merits of the matter. I do not rule out the possibility of such a change being made at some time in the future, but I am not aware of any current proposals.

Meanwhile, objectors to planning applications will have to content themselves with writing letters of objection, campaigning and lobbying where this is practicable, and addressing the committee for their allotted three minutes. If this does not have the desired effect, then I am afraid that this will be the end of the road for the objectors in the vast majority of cases. The only other option is an application to the High Court under CPR Part 54, but you are looking at costs which are likely to be in the region of £30,000 (plus VAT), and you would be running a substantial risk of having to pay the other side’s costs as well if you were unsuccessful. I don’t know whether any statistics are maintained as to the success rate in judicial review cases, but my guess is that the percentage of successful challenges is pretty low. It is a step which I very rarely advise clients to take.



Anonymous said...

You say that objectors do at least have the opportunity to address the Committee. Not always. I submitted a carefully constructed objection to a development. My local Council refused to allow me to go before the Committee, despite my objection being supported by the Town Council. It seems that some Councils make up the rules as they go along. So much for openness and Localism.It is outrageous.

Martin H Goodall LARTPI said...

There is no absolute right to address a committee, but the practice of allowing applicants and objectors to do so (usually for up to 3 minutes) has become more or less universal. There is in most cases a requirement to notify the committee clerk in writing (or by email) the previous day, or possibly slightly longer in advance in some cases, of your wish to speak, and some councils require a prior copy in writing of what you intend to say. The precise procedure is a matter for the discretion of each council. I wonder whether the refusal of the committee to hear you may have been due to failure to comply with local procedure in this case? If other parties are usually allowed to address this committee, then this is probably the explanation; on the other hand, if no-one is allowed to do so, then this is presumably a council that has decided not to allow this privilege to be exercised.

David Manley said...

What is the correct procedure /ettiquette for an applicant to respond to an objection? Should the applicant wait until the period for comment is closed and then write to the planning committee with responses, clarifications, etc?

Martin H Goodall LARTPI said...

There is no correct procedure or etiquette for responding to objections. It is entirely up to the applicant whether or not they decide to respond. Some objections do not merit any response. The earlier an applicant responds to an objection, the more likely it is that the objector, having seen the response on the council’s website, will rhen write another letter reinforcing their objection. So it may be better to wait before responding to any objections that you think might need a response or refutation. It is really a matter of commercial judgement in each case.