Friday, 29 June 2018
DHCLG has embarked on a review of the use and operation of the planning appeal inquiries procedure, claiming to make it quicker and better [pause here for collective groan]. The review will examine the process in its entirety and is expected to make recommendations that DHCLG hopes will significantly reduce the time taken to conclude planning inquiries, while maintaining the quality of decisions. [Well, it might, or it might not.]
The review will examine the rules and processes of the entire process involving inquiries, particularly focusing on major housing schemes, which for obvious reasons the government is very anxious to speed up. The role of the various players (developers, LPAs and objectors, etc.) in influencing the progress of the appeal process will be part of this. Whilst the avowed objective of the review is simply to examine whether the inquiry procedure can be made more ‘efficient’ and therefore quicker, so as to improve the handling by PINS of appeal processes generally, there is inevitably a potential threat that an attempt may be made to restrict the ability of parties to put their cases as fully and fairly before the inspector as they might wish. Issues of procedural fairness could arise.
The Review is intended to involve all parties in the inquiry processes, including appellants, local planning authorities, third parties including statutory consultees, lawyers, Planning Inspectors, and other PINS staff. It is intended to focus on the role of inquiries in major housing applications, with wider application to all inquiries. Comparisons may be made with other appeal and review processes.
In particular, ministers intend that the review should consider the circumstances in which the public inquiry procedure is favoured by appellants and whether a different procedure may be more appropriate [a further attempt to restrict the availability of the inquiry procedure?], the purpose of the inquiry procedure and whether current practice fulfils this purpose, the rules and procedures governing inquiries, the custom and practice during inquiries (including making recommendations for improvements, in particular what it would take to halve the total time currently taken from start to finish) and, finally, the specific implications for the Planning Inspectorate and appellants of any recommendations to change the inquiries procedure, including implications for other appeal procedures.
The review is being led by Bridget Rosewell OBE, and will report to the Secretary of State by the end of this year. It has not yet been made clear how participants will be involved in the review, but interested parties should begin thinking how to respond to the review. Early representations by planning professionals and others would no doubt be advisable, in view of the fact that the report is expected to be in the hands of the Secretary of State in barely six months from now.
UPDATE [9.7.18]: I am grateful to Tony Thompson MRTPI, MRICS, Head of the Planning Appeal Inquiries Review Team at MHCLG for some further information on this review.
In terms of engagement, as a first step, they plan to issue a call for evidence later this month and would welcome responses from all those who are interested, particularly from those who have first-hand experience of the inquiry process.
Any planning professionals who would like to be added to the list of those informed when the call for evidence is issued, should contact MHCLG to register their interest. The call for evidence is in any event likely to be widely publicised in the professional press, and so even if you do not request personal notification when the call for evidence is issued, everyone will have an opportunity to contribute their views. As Tony Thompson says, views based on practical professional experience of the appeal process will be of particular value to the review team.
© MARTIN H GOODALL
Tuesday, 12 June 2018
Paragraph W (12) in Part 3 of the Second Schedule to the GPDO provides that the development permitted under Part 3 must be carried out in accordance with the details approved by the LPA. Where prior approval is not required (or where the 56-day period has expired without the applicant having been notified of the LPA’s determination of the prior approval application) the development must be carried out in accordance with the details provided in the prior approval application. In both cases, the requirement for the development to comply with these details applies “unless the local planning authority and the developer agree otherwise in writing”.
The question has arisen as to what formalities, if any, are required in order to obtain the LPA’s agreement to any variation. The reference to such agreement simply being “in writing” seems to me to indicate that a formal application, such as a fresh prior approval application or a planning application (for example under section 73) is not required. However, some LPAs seem to have taken a different view.
My own view is reinforced by a parallel provision in Part 16 (relating to telecoms development). Paragraph A.3(8) in Part 16 provides that the development must, except to the extent that the local planning authority otherwise agree in writing, be carried out in accordance with the details approved in the prior approval, and in any other case, in accordance with the details submitted with the application. Paragraph A.3(9) then goes on to explain that “The agreement in writing referred to in sub-paragraph (8) requires no special form of writing, and in particular there is no requirement on the developer to submit a new application for prior approval in the case of minor amendments to the details submitted with the application for prior approval”.
Now, I appreciate that Inspectors have resisted attempts to import the provisions of one Part of the Second Schedule into another Part by analogy, but if no formality is required in seeking agreement to minor variations under Part 16, then I see no reason why any formality should be required in seeking similar agreement under Part 3.
If the GPDO had been properly drafted, the wording I have quoted from paragraph A.3(9) in Part 16 should also have appeared in paragraph W(12) in Part 3, and this is not the only example of a failure to ensure uniformity in the provisions in different Parts of the Second Schedule to the GPDO. The opportunity should be taken to correct such anomalies in the drafting of the Order. In the meantime, it is to be hoped that common sense will prevail, and that LPAs will not be difficult about accepting informal requests for the variation of approved or submitted details. The only requirement is that the actual agreement between the LPA and the developer should be “in writing”.
© MARTIN H GOODALL