Author: Charlotte Dyer, Senior Associate, Planning, London
You've been refused planning permission or it has been granted subject to onerous conditions. Discussions with the local planning authority about revised proposals have not resulted in an alternative solution satisfactory to all parties. You decide that the next step should be to appeal. However, before you submit your appeal form, there are some important points that you should consider:
2. Appoint your legal team early
3. Don't burn your bridges with the Local Planning Authority
5. Meet the timescales imposed
6. Pay careful attention to the detail
1. Merits of the case: The most important exercise to undertake before deciding to appeal is to assess your chances of success. Appeals can be very expensive, particularly if they proceed through the inquiry procedure. If you submit an appeal then later withdraw it, you could have a costs order made against for wasted costs incurred by the other appeal parties. Your legal team should be able to advise you of their view of the likelihood of success. If less than 50%, it might be better to go back to the drawing board.
2. Appoint your legal team early: I would say this because I'm a lawyer but it really is important to appoint your solicitors and barrister early on in the process. They can help with the preparation of appeal documents and ensure that you don't fall into any of the traps mentioned below.
3. Don't burn your bridges with the local planning authority: Just because you have appealed the local authority's decision does not mean that you can now give them the cold shoulder. The parties will be expected to work together to agree a statement of common ground (unless the written representations procedure is being used) and draft conditions/obligations. Remember also that after your permission has been granted, you will need their approval for the discharge of conditions and for any variations to that permission.
4. Decide which procedure: There are three possible procedures: written representations, hearing and inquiry. There are pros and cons of each option and you should discuss the most appropriate option with your legal team. Whilst the decision is ultimately for the Planning Inspectorate, you will have the opportunity to say which you would prefer and you should make your case as strongly as possible and try to agree this with the local authority in advance of submitting the appeal.
5. Meet the timescales imposed: There are strict deadlines within which an appeal must be submitted which vary depending on the type of appeal. Once an appeal has been validated by the Planning Inspectorate you will be given a timetable for how the appeal will run. Make sure you keep to this timetable or give the Planning Inspectorate and all appeal parties plenty of notice if you need an extension. Allow sufficient time for the preparation of statements of case and proofs of evidence (for an inquiry) as these set out the basis of your case and must be robust and defendable.
6. Pay careful attention to the detail: The process of notifying landowners about your appeal and submitting your appeal through the Planning Portal is riddled with traps waiting to snare unsuspecting appellants who haven't looked carefully enough at the detail. Make sure you use the correct notice and obey the relevant notice periods. Read the questions on the appeal form and answer them truthfully and accurately, providing all requested supporting information within the deadline. If you tick the wrong type of appeal on the form then the deadline for appealing expires, you won't be given a second chance so get it right first time.
7. Engage with Rule 6 parties: These are interested parties, often local resident groups or non-governmental organisations, given special status in respect of an appeal using the inquiry procedure. They will be allowed to submit evidence to the Inspector and speak at any inquiry. Don't forget to engage with them in a timely manner and if appropriate involve them in discussions with the local authority about statements of common ground and conditions.
8. Inquiry: Preparing for an inquiry could be a whole blog entry in itself (watch this space!) but one of the most important actions to take if your appeal goes down the inquiry route is to ask for a programme officer to be appointed as early as possible. They co-ordinate between the parties, facilitate the exchange of documents, draft the inquiry timetable and manage the Core Documents. Their involvement is therefore invaluable to ensure a smooth running inquiry.
Herbert Smith Freehills advise on a variety of planning appeals, including recently advising Cuadrilla on its five high profile planning appeals against Lancashire County Council's decisions in respect of Cuadrilla's shale gas exploration proposals.
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Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.