HOW TO OBJECT
OBJECTING TO A PLANNING APPLICATION
(INCLUDING OBJECTIONS TO APPEALS)
This note is designed to help a lay person to object effectively to development of which they disapprove. It is rarely cost effective to seek professional help in formulating a planning objection, and so I have endeavoured to give fairly full advice in this note to enable you to make your own objection and to pursue it through the Council’s planning procedures and also, if necessary, through the appeal process.
Finding out about it
When your local Council receives a planning application they are supposed to notify those neighbours who they think may be affected by it, but this depends on the judgment of planning officers and not everyone who thinks they ought to have been informed gets a letter. Nonetheless, you can object to any planning application, whether or not you have personally received a letter informing you of it.
One way of finding out about local planning applications is to look on the Council’s website. Not only can you see what planning applications have been received, but you can also view and download the details of those applications and can sometimes see what other people have already said about them. If you do not have access to the internet, copies of applications should be available for inspection in the Council’s Planning Department and are also deposited in some local libraries.
Making an objection
The way to object to the Council about a planning application is to write to the Planning Department, either by post or by e-mail (possibly using the comments facility on the Council’s website). You should quote the planning application number (shown on the Council’s letter to you or on the Council’s website) and send the letter to the address shown in the letter or on the website.
Your objection will have more effect if a number of people write in to object, but do not be tempted to organise a petition; it will not carry any weight and is a waste of time. Also avoid using a ‘standard’ letter. Objectors should use their own words and write, type or word process their letters themselves. Objections will not carry the same weight if they are seen to have been written or produced in a standardised form.
Councils always request comments within a time limit (usually within 21 days of notification), but in practice they will take into account any representations received before the application is actually determined. So it is not too late to comment provided a planning permission has not actually been issued. On the other hand, it is obviously best to make your views known as early as possible.
There is no restriction on what you can say about a planning application, but your Council will not publish or take account of any material which they think is libellous, racist or offensive. There is no point in putting things in your letter which are not relevant to planning, because by law the Council can only take into account the planning issues and must not allow themselves to be influenced by other considerations unless they really are relevant to planning.
It therefore makes sense when objecting to a planning application to concentrate on those aspects of a development which are likely to be unacceptable in terms of their visual impact, effect on the character of a neighbourhood, possible noise and disturbance, overlooking and loss of privacy. The likely effect of the development on the residential amenity of neighbours is clearly an important consideration. On the other hand, a possibly adverse impact on property values is not a relevant planning consideration, and so there is no point in mentioning it.
If the proposed development is in a designated Conservation Area or would affect the setting of a Listed Building (i.e. a building on the statutory list of buildings of special architectural or historic interest), there may be further grounds of objection relating to the effect of the development on the character and appearance of the Conservation Area or on the setting of the particular Listed Building. Similar considerations would apply if the site is in a part of the country which has been officially designated as an Area of Outstanding Natural Beauty (AONB).
As a general rule, new development will only be acceptable within existing settlements. The Development Plan (see “Planning Policies” below) defines the precise boundaries of settlements. So it should be perfectly clear on which side of the line the application site lies. New development is also discouraged in the Green Belt. There are also strict limits on the size of house extensions in the Green Belt (even if the site is inside the boundary of a settlement, but the Green Belt ‘washes over’ it). Basically, house extensions in the Green Belt must not significantly enlarge the overall size of the house, and the cumulative size of successive extensions will be taken into account in this calculation compared to the size of the house as originally built.
Until quite recently, government policy encouraged a higher density of residential development within existing settlements than might have been considered acceptable some years ago. This included infilling within existing residential areas. However, the government announced a change of approach in June 2010, and so objections based primarily on the density of the proposed development or on alleged overdevelopment of the site, especially if it involves so-called ‘garden grabbing’, may once again be used as persuasive arguments against such proposals. This policy has now been carreid over into the National Planning Policy Framework. In any event, the effect of the development on the character of the neighbourhood has always been, and remains, a factor which may lead to the refusal of planning permission, so you should not hesitate to raise issues of density and possible overdevelopment of the site as well as the adverse impact which the proposed development might have on the character of the neighbourhood or on the residential amenity of neighbours.
Design (including bulk and massing, detailing and materials, if these form part of the application) is nowadays recognised as an important factor in the acceptability of a development proposal. If you think the development looks ugly, then you should say so, especially if it is over-bearing, out-of-scale or out of character in terms of its appearance compared with existing development in the vicinity. As mentioned above, a higher standard of design is expected in a Conservation Area, or where it affects the setting of a Listed Building. Councils are under a legal duty to have particular regard to the desirability of preserving or enhancing the character and appearance of a Conservation Area. Similarly, a development which would adversely affect the setting of a Listed Building is unlikely to be acceptable. The impact of the development on the landscape will also be an important factor in a designated Area of Outstanding Natural Beauty
Concerns about highway safety may also be raised, but it should be borne in mind that such issues are subject to careful technical examination by qualified engineers employed by the highway authority, and so objections based on road safety fears are unlikely to carry much weight unless it is also the independent view of the Council’s own highway engineers that the development would adversely affect highway safety or the convenience of road users.
One point which is controversial is the relevance in planning terms of the loss of a view. It is often said that “there is no right to a view”. Whilst that is correct in strictly legal terms, it does not mean that the loss of a view is necessarily irrelevant to planning. The enjoyment of a view could be an important part of the residential amenity of a neighbouring property, and its loss might therefore have an adverse impact on the residential amenity of that property. Loss of a view from a public viewpoint might also have a wider impact on a neighbourhood, and such matters ought to be taken into account where they are raised.
To summarise, the following are the grounds on which planning permission is most likely to be refused (although this list is not intended to be definitive) :
• Adverse effect on the residential amenity of neighbours, by reason of (among other factors) noise*, disturbance*, overlooking, loss of privacy, overshadowing, etc. [*but note that this does not include noise or disturbance arising from the actual execution of the works, which will not be taken into account]
• Unacceptably high density / overdevelopment of the site, especially if it involves loss of garden land or the open aspect of the neighbourhood (so-called ‘garden grabbing’)
• Visual impact of the development
• Effect of the development on the character of the neighbourhood
• Design (including bulk and massing, detailing and materials, if these form part of the application)
• The proposed development is over-bearing, out-of-scale or out of character in terms of its appearance compared with existing development in the vicinity
• The loss of existing views from neighbouring properties would adversely affect the residential amenity of neighbouring owners
• [If in a Conservation Area, adverse effect of the development on the character and appearance of the Conservation Area]
• [If near a Listed Building, adverse effect of the development on the setting of the Listed Building.]
• The development would adversely affect highway safety or the convenience of road users [but only if there is technical evidence to back up such a claim].
The following points, on the other hand will not be taken into account in deciding on the acceptability of the development in planning terms :
• The precise identity of the applicant;
• The racial or ethnic origin of the applicant, their sexual orientation, religious beliefs, political views or affiliations or any other personal attributes;
• The reasons or motives of the applicant in applying for planning permission (for example if the development is thought to be purely speculative);
• Any profit likely to be made by the applicant;
• The behaviour of the applicant;
• Nuisance or annoyance previously caused by the applicant [unless this relates to an existing development for which retrospective permission is being sought];
• Concerns about possible future development of the site (as distinct from the actual development which is currently being proposed);
• Any effect on the value of neighbouring properties
Planning decisions are never taken in a vacuum. The officers or councillors who determine a planning application do not just do so on a whim. They are required by law to determine such matters in accordance with “the Development Plan”, unless material considerations indicate otherwise.
The Development Plan will in future consist of a number of 'development plan documents' (DPDs), starting with a Core Strategy, which is then supplemented by more detailed DPDs explaining how the policies in the Core Strategy are to be implemented and applied. These various documents were known collectively as the 'Local Development Framework' but are now more usually referred to simply as the 'Local Plan'. The plan will prescribe the areas where particular types of development will be acceptable and will designate other areas (such as Green Belt and open countryside) where development is generally discouraged. In addition, the plan will contain detailed policies relating to design, acceptable uses (for example in town centres) and other detailed matters. In addition, most planning authorities also publish supplemental planning guidance, giving detailed advice on particular planning issues. Most development plans (and some supplemental planning guidance notes) are now published on the internet, and will be found on the Council’s website.
In quite a few areas the local planning authority has still not succeeded in putting its Core Strategy in place, and even where a Core Strategy has been adopted, it may not yet have been fleshed out by other DPDs. In such cases, some or all of the policies in the old-style Local Plan will still apply, although as old Local Plans become increasingly out-of-date, the weight to be given to them is much reduced, especially where they are seen to be inconsistent with the policies in the National Planning Policy Framework (see below).
Until comparatively recently there was also an over-arching ‘Regional Spatial Strategy’ (or 'Regional Strategy'), which was concerned with strategic planning issues over a wider area of the country. However, Regional Strategies have now been abolished. This will leave only the new Local Plan* [*Local Development Plan in Wales] (replacing the former Local Plan or Unitary Development Plan) which sets out planning polices for the area of a district council (or unitary authority).
Among the material considerations which a Council must also take into account is ministerial policy and guidance, set out in various government circulars and in the National Planning Policy Framework (the NPPF), published in March 2012, which replaced the previous series of Planning Policy Guidance Notes (PPGs) and Planning Policy Statements (PPSs). [In Wales, there is a single document – ‘Planning Policy – Wales’ and a series of Technical Advice Notes on specific topics.] The NPPF is of considerable importance in areas where a Core Strategy has not yet been adopted by the local planning authority. It has led to numerous appeals being allowed for housing developments where the local council cannot demonstrate that it has a committed 5-year land supply for housing.
As a general rule, objectors need not concern themselves with these documents, but if you believe that a proposed development would be in breach of a particular policy, then you might find it helpful to draw attention to this.
There was a time when most planning applications would be determined by a committee or sub-committee of the elected councillors. Now, however, many of these applications are decided by the Council’s officers under powers which have been delegated to them by the Council.
However, most Councils have a mechanism which enables planning applications which might otherwise have been dealt with by the officers under delegated powers to be referred to a committee or sub-committee of the authority’s elected members instead. The precise way in which these rules work varies from one Council to another, but it usually involves at least one member of the Council (such as a Councillor for the ward in which the application site lies) requesting that the application be referred to committee for determination. In some cases, this will happen automatically if a Councillor has requested it; in other cases it may depend on the decision of the Chairman of the committee as to whether or not it will be referred to committee.
If you believe there is a risk that a planning application to which you object may be approved by a planning officer under delegated powers, you should contact your local Councillor and ask them to get the application referred to committee, so that it can be properly debated. This does not guarantee that the application will be dealt with in that way, but there is a good chance that it may be referred to committee in these circumstances.
It used to be a lot easier than it is now to approach councillors about pending planning applications. Revised local government legislation and the nationally imposed Code of Conduct which councillors now have to follow have made them much more cautious about being lobbied. For that reason, attempts to persuade individual councillors to support your cause in relation to a particular planning application are likely to be rebuffed, and in some cases a councillor who has been lobbied may even feel that they have to refrain from taking part in the decision solely for that reason. There has recently been some relaxation of the code of conduct in the future but, you should continue to be cautious about lobbying councillors.
As a general rule, the only safe way of ‘lobbying’ councillors is to write an identical letter to all members of the planning committee (or the sub-committee which is going to determine the application), and make it clear in the text of the letter that this is a letter which is being written to all the members. You cannot be sure that the councillors will actually read the letter or take any notice of it, but you will at least have communicated your views direct to councillors, rather than having them ‘filtered’ or summarised by officers in their committee report.
Don’t waste time writing to your Member of Parliament. Even if he or she is persuaded to write in on behalf of constituents, the views expressed will carry no greater weight than those of any other objector. An MP has no authority or influence over the Council, and certainly cannot arbitrate or mediate in planning matters or act as some sort of appeal tribunal.
Attending the Planning Committee
Where a planning application is determined by a Committee (or Sub-Committee) of the Council’s elected members, that meeting will be held in public, and you may attend the meeting. Most Councils give members of the public the opportunity to speak briefly at the meeting (usually for no more than 3 minutes each). It will nearly always be necessary to give advance notice to the Committee Clerk of your wish to speak. Notice must usually be given in writing or by e-mail at least a day ahead of the meeting. Check the Council’s rules about this on their website, or ask the Committee Clerk about it.
Procedures vary from one council to another, and public statements may either be taken together at the beginning of the meeting, or before each individual item. If you intend to speak at the meeting, it is essential that you ensure that you can say what you want to say within the 3-minute time limit. If you exceed your time, you will be unceremoniously cut off, without even having the opportunity to finish the sentence you had started! You should therefore stick to the most important points, cut out any unnecessary detail, and don’t waste time with introductory waffle. Get straight to the point, and make sure you get across the essential points you want to make.
Other parties will also have the opportunity to address the committee, but you will have no right of reply, nor will you be able to ask questions. No interruptions are allowed during the Councillors’ discussion of the item in question. You cannot correct or query anything that anyone else says, no matter how mistaken or untruthful you may think it is. After you have made your own brief statement, you must just sit and listen, and hope that the Councillors come to the ‘right’ decision.
Getting an application ‘called in’
If a planning application is extremely controversial and raises issues which are of concern not only within the District itself but over a wider area (i.e. adjoining Districts, or the whole County or Region), then there is a possibility that the Secretary of State may be persuaded to call-in the application for his own determination under s.77 of the Town & Country Planning Act 1990. It is only very large developments, likely to have an impact over a wider area (not just the locality in which they are situated), which are liable to be called in. The Secretary of State has a wide discretion as to whether or not a planning application should be called in, but such call-ins are very rare. Mere strength of opposition is not enough to secure a call-in; it must be clearly shown that the potential impact of the development is likely to be felt over a very wide area, extending beyond the locality in which the site is situated. In other words the proposed development must be of ‘strategic’ importance.
I did not perhaps spell out the fact in previous editions of this note that getting an application called in under section 77 is well nigh impossible in practice.
Some of the very large-scale developments which would previously have been called in under s.77 of the 1990 Act are now be dealt with under a special procedure for large infrastructure projects, and referred automatically for decision to the Infrastructure Planning Commission set up under the Planning Act 2008. The Infrastructure Planning Commission has now been absorbed into the Planning Inspectorate, but the regime for dealing with major infrastructure projects which was set up by the 2008 Act will continue largely as before, subject to the final decision being taken by Ministers (in much the same way as a called-in application under Section 77, as mentioned above).
Challenging a planning permission
If planning permission is granted, objectors currently have no right of appeal against that decision. There is only one exception to this. If there is a serious legal error in the Council’s decision, or in the way in which it was reached, a legal challenge can be brought before the High Court by way of an application for judicial review, seeking the quashing of the decision. However, the Court’s jurisdiction is strictly confined to dealing with an error of law; they will not ‘second guess’ the decision maker and substitute their own view as to the planning merits. If the decision to grant planning permission was lawful, the Court will not intervene, no matter how ‘bad’ the decision might appear to be in purely planning terms.
An application for judicial review is not to be embarked upon lightly. The costs can be counted in many thousands of pounds, and the chances of success for the objectors are very slim. If an application is to be made to the High Court, it must be made promptly and in any event within 6 weeks after the date on which the planning permission is actually issued. There used to be a long-stop date of 3 months, but this changed in the summmer of 2013. The court may extend the 6-week period in exceptiopnal cases, but it should generally be assumed that the claim must be issued in the High Court within the 6-week period. It gives you very little time to get organised, and so if judicial review is a realistic possibility, you need to be ready to go ahead with it almost immediately upon the planning permission being issued.
Before an application for judicial review can proceed, the Court must first give its permission to the claimant to do so. The Court must be satisfied on the papers that there is at least an arguable case that there was an error of law which would justify a quashing order being made. If an application for permission to proceed with judicial review is initially rejected on the papers, it can be renewed for oral hearing by a single judge, but this is when the costs begin to mount up.
In those cases that get to a full hearing (after permission to proceed has been given), the Court still has a discretion as to whether or not to quash the planning permission, even if they are satisfied that there was a legal error in the decision to grant it. If the Court feels that in the end the same decision would be reached on the planning application, they may very well refuse to make a quashing order. It is important in this connection to bear in mind that a quashing order will not necessarily lead to a refusal of planning permission. It merely puts the matter back in the hands of the Council for re-determination. They could quite properly decide to grant planning permission after all, so long as they avoid the legal error which led to the original decision being quashed.
In case it is not clear from the notes written above, the chances of successfully challenging a planning permission in the High Court are really very small. It is not a realsitic option except in a tiny minority of cases.
If planning permission is refused, the applicant will have a right of appeal to the Planning Inspectorate. If you have objected to the planning application, the Council should inform you if there is a subsequent appeal.
If the application relates solely to a ‘householder’ application (i.e. the alteration or extension of an existing house), it will be dealt with by a 'fast-track' appeal procedure, and there will be no opportunity for objectors to make any further representations. All letters received by the Council on the application will be sent on to the Inspector, but he or she will decide the appeal solely on the papers, plus an unaccompanied site visit. There will be no hearing or inquiry.
In other cases, the appeal can be dealt with either on the basis of full written representations, or at a hearing or public inquiry. Public inquiries are only held in the more important cases; others are usually dealt with either at an informal hearing or, in the majority of cases, by the written representations procedure. In all three of these procedures you will have the right to make further written representations in addition to anything you may have written at the application stage.
Although the Inspector will see letters sent to the Council in response to the initial planning application, it is generally advisable to write again to the Planning Inspectorate (at the address in Bristol given in the Council’s notification letter and quoting the appeal number in full). The same ‘Do’s’ and ‘Don’ts’ apply to these letters as apply to letters written in objection to the application itself (see above).
Where a hearing or public inquiry is held, you have the right to attend this and should be notified of the date, time and place at which it will be held, if you have written in to the Planning Inspectorate in response to the appeal. With the Inspector’s permission (which is never refused in practice) you may speak at the hearing or inquiry, but only towards the end when the Inspector invites you to do so. If possible you should be present at the beginning of the hearing or inquiry so that you can tell the Inspector of your wish to speak later, when he or she asks if anybody besides the main parties to the appeal wishes to speak.
You will not usually be allowed to participate in a public inquiry apart from this, although if you are legally represented, the Inspector will usually allow your solicitor or barrister to put questions to the Appellant’s witnesses (but not to the Council’s witnesses) at appropriate points in a public inquiry. With this exception, objectors are not usually allowed to ask questions, although at some public inquiries the Inspector may occasionally allow an objector to address a question through them, which the Inspector will then put to the witness.
The time when objectors are allowed to address an Inspector at a public inquiry is usually after all the evidence has been heard and before the Council and the appellant make their closing submissions, but if you would have difficulty in being present at that time, the Inspector will usually make arrangements for you to be heard earlier, if it is practicable to do so. There is no time limit on what you want to say at a hearing or public inquiry, but you should still try to keep it brief and to the point. It will help the Inspector if you can provide both for the Inspector and for the other parties word-processed or type-written copies of what you intend to say, which should be handed in when you are invited to speak. (Take with you at least 4 copies – one for you, one for the Inspector, one for the Council and one for the Appellant.)
The procedure at a hearing is slightly less formal than it is in a public inquiry, and questions are not put to witnesses in these cases. The procedure takes the form of a round-table discussion conducted by the Inspector, but the Inspector remains in sole charge of the procedure, and you must only speak with the Inspector’s permission.
A site inspection is usually held immediately after the hearing or inquiry is closed. You may attend this site visit if you wish, but you should clearly understand that after an inquiry there can be no further discussion on site – the Inspector is there only to see the site, and anything said to the Inspector must be confined to pointing out physical features on the site. You can leave it to the planning officer to do this.
In the case of a hearing, the Inspector may formally close the hearing before going on site, in which case the same rules apply on the site visit as above. However, in many hearing cases, the Inspector will adjourn the hearing to the site, so that discussion can continue on the site visit. This is not a free-for-all, but there may in this case be an opportunity for you to make points to the Inspector during the site visit. Nonetheless, they should be relevant to the site visit itself and should be related to what the Inspector can see or should look at on site. The site visit is not an opportunity to canvass again matters which have already been (or should have been) dealt with earlier in the hearing.
The result of an appeal will not usually be known for some time after the appeal has been heard (usually between one and four weeks). If you notified the Inspector of your wish to receive a copy of the decision letter (and put your name and address on the attendance form), you should receive a copy of the decision direct from the Planning Inspectorate. After a major public inquiry, two or three months may elapse before the decision is issued, and sometimes even longer.
Enforcement Notice appeals
Development sometimes takes place without planning permission first having been given for it. Councils have the power to serve an Enforcement Notice against such development. The person on whom a notice has been served has a right to appeal against the notice to the Planning Inspectorate. The rules and procedures are very similar to those in other planning appeals (described above).
The grounds of appeal may include various legal and technical grounds but, provided the relevant appeal fees have been paid, the appeal will also include a planning application and/or an appeal on the ground that Planning Permission ought to be granted. Local residents may wish to object to this in the same way as they would to a planning application made to the Council. In this case, however, the objection should be made to the Planning Inspectorate in the same way as in other planning appeals (as described above). The procedures in an Enforcement Notice Appeal are much the same as in other planning appeals, as described above (except that there is no ‘fast track’ procedure in respect of an Enforcement Notice relating to the alteration or extension of a house).
The position following an appeal decision is very similar to that following a grant of planning permission by the Council. There is no further right of appeal, either for the applicant or for objectors, but if there is a serious legal error in the Inspector’s decision, or in the way in which it was reached, a legal challenge can be brought before the High Court. The procedure is similar to an application for judicial review, seeking the quashing of the decision (though it does not involve the preliminary stage of seeking the Court’s permission to proceed, except in the case of an appeal involving an Enforcement Notice). Again, the Court’s jurisdiction is strictly confined to dealing with an error of law; they will not ‘second guess’ the Inspector and substitute their own view as to the planning merits. If the Inspector’s decision was lawful, the Court will not intervene, no matter how ‘bad’ the decision might appear to be in purely planning terms.
You can only challenge an appeal decision in the High Court if you actively participated in the appeal procedure. At the very least, this would involve writing to the Planning Inspectorate to object to the appeal, and (if you attended the appeal) addressing the Inspector. A person who simply attends a public inquiry but does not participate in the proceedings has no standing to challenge the appeal decision in the High Court.
An application to the High Court is not to be embarked upon lightly. The costs can be counted in many thousands of pounds, and the chances of success for the objectors are slim. If an application is to be made to the High Court, there is a strict time limit in appeal cases – 6 weeks from the date of the decision letter on an appeal against a refusal of planning permission and only 28 days in the case of an appeal involving an enforcement notice. The discretion which the Court has over the time limit in judicial review cases does not extend to the 6-week time limit in this case; it is absolute, and cannot be extended. The 28-day time limit in enforcement appeal cases may be extended in exceptional circumstances, but usually only by a few days at most, and there would have to be a very good reason for the delay.
In a case involving an appeal against an enforcement notice, there will be a preliminary hearing before the Court gives its permission to the claimant to proceed. The Court must be satisfied that there is at least an arguable case that there was an error of law which would justify a quashing order being made. In this case, there is no appeal against a decision by the Court to refuse permission to proceed. The requirement in an Enforcement Notice Appeal to seek the permission of the Court to bring a challenge against the appeal decision applies to any party who wishes to challenge the decision, not just the appellant.
As in the case of judicial review applications, the Court still has a discretion in these cases as to whether or not to quash the appeal decision, even if they are satisfied that there was a legal error in the Inspector’s decision or in the way in which he or she reached it. If the Court feels that in the end the same decision would be reached on the appeal, they may very well refuse to make a quashing order. It is important in this connection to bear in mind that a quashing order does not reverse the Inspector’s appeal decision. It merely puts the matter back in the hands of the Planning Inspectorate for re-determination. Another Inspector might quite properly reach the same decision in re-determining the appeal.
Where an appeal decision is quashed by the High Court, there will usually be a re-opened hearing or inquiry, and even in cases which were originally dealt with by the written representations procedure there will quite often be at least a hearing, or even sometimes a public inquiry before the appeal is re-determined. You will be entitled to participate in this in the same way as in the original appeal.
As in the case of a re-determined planning application, the quashing of an appeal decision does not automatically lead to its being reversed. It is possible for the appeal to be allowed again when it is re-determined.
I should make it clear, in case it is not obvious from what I have written above, that the chances of a third party objector getting an appeal decison overturned in the High Court are vanishingly small.
I hope that the notes set out above will prove helpful in guiding you through the planning process as a potential objector to development. However, if you really do want professional help in objecting to a planning application or appeal, and are prepared to pay legal fees of £1,700 upwards (plus VAT), and considerably more if representation is required before a planning committee, then please feel free to contact me at KEYSTONE LAW. However, I should point out that a deposit of not less than £2,000 on account of costs will be required before we are able to start work on the matter.
© MARTIN H GOODALL LARTPI