With planning issues becoming more important and contentious with increasing population sizes and limited spaces on which to build, planning appeals appear to be rising. The framework for the appeal process can take a number of forms but primarily a district council will empower a planning officer to make delegated decisions which can be appealed to a district council’s planning committee where representations can be made. Subsequent to that, an appeal can be brought before the Planning Inspectorate.
Section 78 of the Town and County Planning Act 1990 (TCPA) sets out when a party can appeal a planning decision and by whom that appeal must be brought. It is important to note that only an applicant is able to appeal and that can become complex in circumstances in which land has been sold on with planning and the purchaser wishes to appeal or where the original applicant has passed away. Planning appeals are generally brought when planning permission has been refused but can also be useful for developers where permission has bene granted but the planning authority has attached conditions that could be construed to be unreasonable. Where a condition to obtain further planning consent is required and subsequently refused that can also lay the grounds for an appeal.
There are various ways in which an appeal can be made. Usually, these take the form of written representations. Often, a hearing is demanded but the Planning Inspectorate can decide that an appeal by way of written representations is more suitable. Under section 319A TCPA, a determination of the appeal process must be made by the planning inspectorate within the prescribed period which is seven working days. Usually the planning inspectors will hear the appeal but that is not always the case and the Secretary of State for Housing, Communities and Local Government may hear the appeal instead pursuant to Schedule 6, TCPA. This is known as a “recovered appeal” with the decision being recovered by minister following receipt of a report from the inspectors. This Secretary of State also has discretion to invoke the process of “calling in” an application which tends to apply where a planning application conflicts with national policy or is nationally significant.
There are strict time limits in which to commence an appeal. Other than household and smaller commercial appeals (which must be brought within 12 weeks of the decision notice) an appeal form must be received by the Planning Inspectorate within six months from the date on the decision notice. In situations where the local authority is dragging its heels and unable to determine an application, an appeal must be made within six months by the date on which the local authority should have made a decision.
This may not be the end of the story. A decision made by the Planning Inspectorate or the Secretary of State can be brought for judicial review. The decision can only be challenged on a point of law pursuant to section 288 TCPA and the appeal has to be brought within six weeks of the decision letter. If successful, the matter will be returned to the Planning Inspectorate or Secretary of State to reconsider it applying the correct legal principles.
Costs awards can be made with respect to planning appeals. Generally, parties are expected to bear their own costs of the appeal process and costs do not follow the event i.e. a successful applicant is not automatically entitled to its costs of the appeal and there are circumstances in which costs can be recovered from a successful applicant. A party applying for costs against another must show that the payer acted unreasonably and that that unreasonable behaviour caused the payee to suffer from wasted expenditure. Applications for costs should be made at the same time as submitting an appeal.
If you have any questions relating to this please contact Alex Delin in our Dispute Resolution team.
