Considering an appeal?

We, like all agents, sometimes get refusals to the applications we submit.  This can be for a variety of reasons including committee overturning an officer recommendation for approval, or simply a disagreement as to design and/or impact or similar, which can ultimately be subjective assessments with regard to determining an application.  Sometimes other agents and architects, or potential clients, come to us with refusals to see if we can either help overcome the reason(s) for refusal as well as looking at whether a proposal has potential for success at appeal.

So, what does go to appeal mean?  In broad terms if your application is refused (or in some cases not determined) the applicant has the right to apply to the Planning Inspectorate for determination of the proposal by an independent Planning Inspector.  There are different timings within which you need to appeal depending on application type, however, for householder applications (normally those within the curtilage of a dwelling) this is within 12 weeks of a decision but for most other applications an appeal needs to be lodged with the Planning Inspectorate within 6 months.

Progressing to a planning appeal should realistically be a last resort.  Sometimes it is prudent to re-engage with the Council through a re-submission to specifically try to overcome the refusal reasons, however, this is not always possible.  It should be kept in mind that, at the time of writing, the latest statistics for the Planning Inspectorate show that average timescales for determination of a Section 78 appeal is 35 weeks and householder applications (which are technically on a fast-track system) taking around 21 weeks.  This is, therefore, a very long time period to wait compared to a potential re-submission in some cases, so it is worth considering your options.  We can run you through the pros and cons depending on the circumstances.

The main thing to consider with any appeal is that it is an evidence-based assessment.  It is not a process within which you can change or evolve a scheme and an Inspector must determine the proposal as it was presented to the Council.  This is, essentially, to ensure that any interested parties and consultees are all commenting upon the same document and are not prejudiced in any way.  As an evidenced based assessment, the Inspector is not expected to go on a “shopping expedition” to find evidence to support either party, so it is important if you are appealing that the best case is put forward within a Statement of Case at the point an appeal is lodged.

In any one year, the Planning Inspectorate receives in excess of 22,000 appeals.  The vast majority of these are dealt with via written representations.  The remainder are dealt with via other appeal routes such as hearings or public enquiry.  The evidence and reports required to put the best case forward can be costly, so it is a route not to be taken lightly.  Every year the Planning Inspectorate publish statistics, which generally show that of the planning appeals submitted, those which are allowed only total between 30% and 35%.  Your chances at appeal, are therefore, only likely if you can present a robustly prepared and well evidenced case to put before your inspector.  It is not a case of hoping someone may take a differing view to a Council.

To put this into context, it is worth remembering that Planning Inspectors do not actually have to be qualified planning professionals, a point that surprises a few, though many Inspectors are.  The criterion for Inspectors is professional qualification in planning or a related discipline.  This can, therefore, mean that architects, legal professionals, or surveyors could, for example, become Inspectors.  With the appropriate training they are able to demonstrate that they can process and make decisions based upon the evidence before them and come to a reasoned view at determination.  In our experience, keeping this in mind assists appellants to prepare the best cases possible, as it reiterates the requirements to put everything in front of an Inspector and provide evidence to points raised as appropriate.

Once an appeal is lodged the householder and S78 routes (via written representations) do vary slightly, in that once a householder appeal is submitted, no parties, including third parties of interest, are able to submit any further comments.  The file is presented to an Inspector who, combined with a site visit, proceeds to determine the proposal in front of them based upon the evidence from all parties.

By contrast, however, S78 appeals allow for the Council and interested parties to respond to the Statement of Case with most Councils generally producing a Statement of Case of their own.  Beyond this, both parties have an opportunity to submit final comments which respond to documents submitted during the appeal and do not seek to submit any new or further information at that stage.  Once this process is complete, the Inspector determines the submissions before them combined with a site visit and a decision letter is issued.

An appeal decision is final, and whilst there are opportunities for legal challenge in the form of a judicial review, this can only be on a point of law if the Inspector has made a mistake on a point of law.  A review cannot be due to someone disagreeing with an Inspector’s opinion on a matter as the Courts will not seek to interfere with planning judgement.  For Courts to interfere in a planning judgement, the decision must have been so unreasonable that no reasonable person could have logically come to the same conclusion when faced with the same evidence as the Inspector in that case.

So, if you are faced with a refusal what do you do?  The first thing to do would be to consider the refusal reason and see whether it could be overcome with amendments and prior engagement with the Council prior to a re-submission.  This would always be our preferred option as it is often the most cost effective, allows for ongoing engagement and is much quicker generally than the current Planning Inspectorate timings.  If, however, it is evident that the proposal would not be successful as a re-submission and there are clear differences in opinion between the parties involved, an appeal may be your best route.

We regularly review applications, ascertain the main issues and advise if an appeal has any realistic prospect of resulting in an approval.  If you need support, or a refusal reviewing, please do get in contact to see if and how we can help you using the details on the contact page of our website.