Nagla Stevens considers the new accelerated procedure for appeals against the refusal or non-determination of planning applications.
On 12 February 2019 the Rosewell Review report was published containing 22 recommendations on how to help speed up decision-making.
The Planning Inspectorate (PINS) immediately started implementing the recommendations with the result that there have been changes to appeals under s78 TCPA 1990 that are to be dealt with by way of the inquiry procedure. A number of significant changes have been made, which are explained below.
A flowchart of the new section 78 inquiry appeal process produced by PINS is found here.
Notification of intention to submit an inquiry appeal
All prospective appellants are required to notify the Local Planning Authority and also the Planning Inspectorate at least 10 working days before submitting the inquiry appeal.
In the notification, the following information must be included:
- Appellant’s name
- The Local Planning Authority that the inquiry appeal will be against
- Reason for inquiry appeal
- Site address
- Description of development
- Planning application number
- Likely submission date of inquiry appeal
Statement of Case – Local Planning Authority
New PINS Statement of Case guidance has been published that sets out what a statement of case should now contain. For the local planning authority’s statement of case must, amongst other things:
- respond to the appellant’s statement of case, addressing each of the reasons for refusal set out on the decision notice (where a decision has been made) which are being pursued, focussing on areas of difference, or the likely reasons for refusal where the inquiry appeal is against non-determination;
- include the relevant facts and planning/legal arguments likely to be relied upon. Where case law is cited, it should include the full legal citation;
- focus on areas of difference;
- include the documents to which the LPA intends to refer or rely;
- set out a summary of the LPA’s overall conclusions;
- provide details of the likely topics that the LPA considers needs to be covered, together with a view on how the evidence can most effectively be tested in relation to each individual topic area (e.g. written evidence only; round table discussion);
- If cross-examination is considered necessary for a particular topic area, justification must be provided for such an approach.
Statement of Common Ground
New Statement of Common Ground guidance has also been published by PINS that provides a template and is accompanied by detailed guidance. In brief:-
- When the inquiry appeal is lodged, the appellant must submit a draft statement of common/ uncommon ground comprising a written statement setting out factual information about the proposal that the appellant considers will/will not be disputed by the local planning authority.
- An agreed statement must be submitted within five weeks of the start date, signed off by the appellant and the local planning authority. This must be prepared jointly by both parties.
- As well as identifying relevant areas of agreement, the statement must focus on those areas where there is no consensus, i.e. where there is uncommon ground to narrow the issues and inform the evidence of the parties to allow focus on the remaining areas of dispute.
- More detailed topic-specific statements of agreed common/uncommon ground relating to the main issues raised by the development proposed may also be requested by the Inspector as part of the early case management process. Depending on the issues arising, those statements may need to be agreed with parties other than the LPA e.g. a Rule 6 party or the Highway Authority. They should inform and must to be submitted at the same time as the relevant proofs of evidence.
- The various agreed statements of common/uncommon ground may also be used to inform a subsequent Position Statement on Main Issues.
Case management conferences
A new step in the process is a case management conference that takes place in advance of the inquiry appeal. The Planning Inspectorate (PINS) planning appeals guidance contains a section on case management conferences.
When a start letter is received, it now contains a paragraph which advises that a case management conference will take place with the main parties by telephone. Each party is asked to nominate a spokesperson to speak and their telephone number and email address should be provided to PINS within 7 days of the start date letter.
Before the case management conference PINS will send out an agenda to the participants. A pre-case management note will be sent out setting out what the Inspector considers the main issues to be and other matters that need to be addressed. The note may also set out how the Inspector thinks that the evidence can best be addressed in order to conduct the inquiry in the most efficient and effective matter.
- If you represent a County Council ask the District Councils and Borough Councils to notify you when they receive a notification of intention to lodge an inquiry appeal, so you are aware of the inquiry appeal at the earliest opportunity
- Once the inquiry appeal has been lodged, nominate a spokesperson for the case management conference and notify PINS.
- Send a short (1-2 page) note to PINS in advance of the case management conference to address the following matters to assist the Inspector:
- The matters that are in dispute;
- What topics could be most efficiently be dealt with as a round table discussion, by written representations or require formal cross-examination and provide reasons for the selected route.
- Engage with other parties to ensure that you agree further matters through position statements, topic papers or updated statements of common ground, where required by the Inspector.
The experience of accelerated inquiry appeals so far has been noticeably different. For example, Inspectors are very actively case managing inquiry appeals and requesting clarification and further evidence where parties submit documents in advance of the inquiry appeal. Queries by Inspectors have sometimes been received within hours in response to submission of documents. The upshot – be prepared to be very actively engaged!