Wednesday, 7 November 2012

Appeal changes mooted

De-CLoG is consulting on some suggested changes to appeal procedures in a “Technical Review of Planning Appeal Procedures”. It is not made entirely clear in the consultation document, but it appears that these proposals relate only to section 78 appeals (against the refusal of planning permission), and do not extend to section 174 appeals (against enforcement notices) or section 195 appeals (against the refusal of a Lawful Development Certificate).

If adopted, the proposals will mean that appeals will be ‘front-loaded’, in the sense that the parties will be required to submit their full appeal statement (currently the ‘Rule 6 Statement’) as part of the grounds of appeal in the appeal form. A draft statement of common ground (‘SCG’) would be required at the same time.

In enforcement appeals it may not be so easy to provide this material at the same time as the appeal goes in, because there is only a very short time in which an appeal can be lodged against an enforcement notice, and it can often be a last-minute rush to get the appeal in before the deadline, let alone compiling additional material at that stage. Having to submit a full statement of case and a draft SCG at the same time might be too much to ask in these cases. However, as indicated above, it does not appear that these proposals are intended to cover section 174 appeals, although there is a veiled threat that they could be extended to cover other types of appeal, including enforcement appeals, in the future.

At present, Rule 6 statements are submitted by both sides six weeks after the ‘start’ date fixed by the Planning Inspectorate, and both the appellant and the local planning authority put in their statements simultaneously. If the rules are changed as DeCLoG suggests, the LPA would not know an appeal is coming in, so their Rule 6 Statement will presumably follow some weeks later. They will in effect be given longer to prepare their statement. If they have by that time had prior sight of the appellant’s full statement, this could be prejudicial to the appellant. It would also negate the saving in time that the change in the rules is intended to achieve.

There is also the issue of comments on the Rule 6 statements (more important in hearing cases than in inquiry cases) and their timing. It seems that what De-CLoG intend is that no further written material should be submitted, except in inquiry cases, where proofs of evidence are exchanged four weeks before the inquiry. I can see one major objection to this. The LPA’s case can sometimes contain some quite erroneous or contentious statements, which the appellant should have the opportunity of countering. If this opportunity is to be removed, it could work injustice in a way that could only be remedied by the High Court. This would seem to be undesirable from any point of view.

More detailed proposals include a rule change to make it a requirement for parties to provide information on the appeal form of the number of witnesses and the length of time they need to give their evidence. This, frankly, would be totally impracticable in many cases. A need to produce a specialist witness on a specific topic as a result of issues raised by the other side, which may not have been foreseen at the outset, may only be recognised some time after the appeal procedure is under way. If PINS is inflexible about this, this may lead to appellants taking the precaution of naming a whole range of witnesses whose attendance at the inquiry is not really necessary, simply in order to avoid their being prevented from dealing with particular issues that might conceivably arise, but which might not. As for time estimates, it is absolutely impossible to predict how long it may take to deal with any particular witness, especially when cross-examination is taken into account (which is entirely outside the control of the party calling the witness).

As foreshadowed in legislation currently going through parliament, a fast-track commercial appeals service is proposed which would mirror the current householder appeals process. However (unlike householder appeals) there would be an element of choice for appellants in adopting the procedure.

Another proposal is to move over wholly to on-line appeals. Many planning professionals already use the on-line system through the Planning Portal, but it may not be so user-friendly from the point of view of a lay person wishing to conduct their own appeal. There is also a need to improve the electronic forms, which are slightly inflexible to use. Uploading electronic material is also a problem. There is often a need to upload far more than the online form can handle, and this then has to be emailed to PINS separately. These issues need to be addressed if electronic filing is to become the norm.



Anonymous said...

Heseltine calls for Inspectorate to determine all applications undecided after six months

Martin H Goodall LARTPI said...

I have read Lord Heseltine’s report, and some of his suggestions are frankly unnecessary (and even counter-productive). This is one of them. If an applicant wants a quicker decision they can appeal non-determination after 8 weeks (although they must wait 13 or 16 weeks in certain cases). If an applicant has waited 26 weeks already, it is probably in the hope that they will get a permission from the LPA, otherwise they would already have appealed. Developers may not welcome an automatic referral to PINS in these circumstances.

Anonymous said...

Interesting stuff Martin. However, do you not think that appellants having 6 months to prepare an appeal, all with the benefit of the case officers report, is enough time already? I think allowing LPA statements to address the full grounds of appeal is sensible because otherwise their statements just become a reiteration of the reasons for refusal in the original report, which for hard pressed LPAs seems like a waste of time.

Martin H Goodall LARTPI said...

I am certainly not suggesting that LPAs should be restricted in the presentation of their case; quite the opposite. I consider it essential that both parties should be able to put their case as fully as is necessary to ensure a fair trial of the issues. What concerns me about the suggestions put forward in the consultation document is that appellants could be put at a disadvantage. They must be given a proper opportunity to answer points made by the LPA. The present rules effectively prevent the lengthy ping-pong match (or ‘cross-examination by correspondence’) which sometimes went on years ago. There does not appear to be any justification for a further restriction on the rights of parties to present their cases fully and fairly. The published proposals are in danger of causing substantial injustice, and could lead to legal difficulties.