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The Appeal Process

The Appeal Process

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The Appeal Process

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  1. The Appeal Process Ben Linscott Assistant Director, Planning The Planning Inspectorate 15 February 2011 Brighton & Hove Planning Forum

  2. The Planning Inspectorate • Planning, enforcement, environmental appeals: • Inquiries • Hearings • Written Representations • Decisions are made in the public interest • Decisions are based on the evidence provided • Principles of openness, fairness and impartiality

  3. Our Performance measures • Issue Decisions/Reports in accordance with Bespoke timetable in all cases • Determine 80% of householder appeals within 8 weeks • Process 80% of remaining s78 appeals end to • end within6 months (26 weeks)

  4. Planning Act 2008 An appeals system that: - is more proportionate to the type and complexity of each appeal - has improved customer focus and efficiency at its core - is better resourced

  5. Key measures • Determining the procedure – Written Representations, Hearing or Inquiries • Improved procedures/guidance on appeal handling • New Costs Circular – extension of costs to Written Representations

  6. What has changed / is changing? • Nature & content of documents • Submission of evidence • Introducing new material • Fixing of inquiry and hearing dates • Statements of common ground • Costs • Enforcement provisions

  7. Nature and content of documents • Appeals should be complete on submission – ie they include: - the appeal form - all relevant plans and drawings that were the subject of the application - the relevant certificates - design and access statement where required • At least 30% of all appeals are incomplete

  8. Submission of evidence • Adhere to the timetables set in Rules • “No surprises” – it is not about wrong footing the opposition • Evidence should be focused, relevant, necessary and as concise as possible (aim for max 3000 words) – shared core documents. • PINS to develop Templates to improve the quality and reduce the quantity of evidence • Make proper use of the Costs regime to regulate behaviour

  9. Introducing new material • Appeal should be last resort • Minor changes or revised proposals – application of “Wheatcroft principles” • LPA has right to expect fully worked out proposals – not about developers ‘crystal ball gazing’ • “De novo” role of SoS - “may deal with the application as if it had been made to him in the first instance.” S79(1)(b) 1990 Act

  10. Amendments to schemes (Wheatcroft judgement) • “is the development so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation” • Crucial to establish whether or not all relevant parties have had the opportunity to consider proposed amendments (inc statutory bodies) • Advise the Planning Inspectorate asap – including reasons • Unreasonable behaviour? Costs

  11. Fixing event dates • 20 week target • Previously high rate of rejection (80%+) of first offer date • Expectation that appellants are ready when they appeal & LPAs ready to defend decision • Encourage early dialogue between main parties on availability within timetables • Aim to offer 2 dates one of which will be fixed (or mutually agreed date) • Bespoke timetabling for more complex cases

  12. Determining the procedure • Adopting the procedure appropriate to the case • Applying published criteria to identify appropriate procedure • Extending costs to Written Representation cases • Parties to suggest appropriate procedure against published criteria • Professional expertise informs administrative decisions – reasons given where disagreement • Inspector discretion to change procedure • Everybody’s interests to get correct procedure

  13. Determining the procedure

  14. Challenges

  15. Charging for appeals • Appellant to pay – less burden placed on public purse (around 30% of cost) • Based on appeal method and time taken • Proposal for Section 78 appeals - planning application submitted to LPA on or after 6 April 2010 - HAS 1 October 2010 • Formal consultation from DCLG due Spring

  16. Costs • Extended to Written Representation cases • Importance of robust costs process to regulate system • Important for parties to use the costs regime effectively • Costs do not follow outcome – basis is unreasonable behaviour leading to unnecessary expense • Revised Circular 3/2009

  17. Guidance Procedural guidance: • Planning appeals and called in planning applications • Enforcement appeals Good practice advice notes: • Bespoke casework • Amendments • New evidence/material www.planningportal.gov.uk

  18. Good Practice Advice (GPA) • 01/2009 Further advice on applying the criteria • 02/2009 Household Appeals Service • 03/2009 Called in planning applications • 04/2009 Secretary of State recovered cases • 05/2009 Bespoke casework service • 06/2009 Communicating electronically with PINS • 07/2009 Nature and content of appeal documents • 08/2009 Guidance on statements of common ground • 09/2009 Amendments to Schemes (Wheatcroft) • 10/2009 Introducing new material at appeal • 11/2009 Meeting the timetables • 12/2009 Fixing dates • 13/2009 Appeal Procedures – Events • 14/2009 Correction of errors • 15/2009 Complaints and challenges http://www.planningportal.gov.uk/england/public/planning/appeals/guidance

  19. Good Practice Advice - I Two main documents • Procedural Guidance: Planning appeals and called-in planning applications (PINS 02/2009); • Procedural Guidance: Enforcement appeals and determination of appeal procedure (PINS 02/2009) • It replaces DETR Circular 05/2000 • Underpinned by a written ministerial statement

  20. Good Practice Advice Notes - II • Further advice on applying the criteria for determining the appeal method • Criteria for Determining the appeal method • Household Appeals Service • Bespoke casework service • Communicating electronically with PINS • Amendments to Schemes (Wheatcroft) • Introducing new material at appeal

  21. Core Principles - I • Critical importance of regular and continuing dialogue between parties • Meet the statutory timetables to ensure no-one is disadvantaged • Reasons for refusal are clear, comprehensible but precise – this includes member overturns • Appellants – clear, precise and comprehensive grounds of appeal

  22. Core Principles II • Appellants – do not introduce substantial changes which could lead to any party being prejudiced (Wheatcroft case) • The appeal should not be used as a bargaining tactic, but as a last resort • Only appeal when ready & committed • Costs regime to regulate the system

  23. Role of the Inspector • Impartial judgement – wholly independent of parties • Clear as to what evidence is required – early identification of issues • Ensure that evidence to inquiry or examination is properly tested • The Inspector is not there to negotiate • The Inspector is not an expert in all matters – hears evidence • Reasoned decision based on law, policy, evidence

  24. Role of the witness • To assist the Inspector • Present evidence and answer questions • Failure to answer questions harms credibility • OK if outside your expertise or knowledge • Expect robust questioning • Inspector will normally intervene if advocate is harassing witness or being intimidating • Inspector will also intervene if witness is being repetitive, or failing to answer question • Inspector may ask questions to clarify a point

  25. The expert witness - duty • Expert evidence is evidence that is given by a person who is qualified by training and experience in a particular subject or subjects to express an opinion. It should be endorsed as such. • It is the duty of an expert to help the Inspector on matters within his or her expertise. This duty overrides any obligation to the person from whom the expert has received instructions or by whom he or she is paid. • The evidence should be accurate, concise and complete as to relevant fact within the expert’s knowledge and should represent his or her honest and objective opinion. • Identify the main issues • Look at all evidence (for and against) objectively / in the round

  26. The Householder Appeals Service Making it easier, simpler and quicker Householder Appeals Service – Making it easier, simpler and quicker

  27. Householder Appeals Service - Principles • New way of working • Simpler and saves all parties’ time and resources • Builds on good practice of Local Planning Authorities (LPAs) • Uses proportionate process & procedure • Maintains quality Householder Appeals Service – Making it easier, simpler and quicker

  28. Franks Principles • Openness • Fairness • Impartiality

  29. Contact details • Ben Linscott • Assistant Director – Planning • Room 3/12, Temple Quay House, 2 The Square, Temple Quay, Bristol BS1 6PN • 0117 372 8955 • ben.linscott.p4@pins.gsi.gov.uk